NUMBER 13-06-469-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

ROBERT S. BENNETT, INDIVIDUALLY

AND THE BENNETT LAW FIRM, P.C., Appellants,

v.

STEPHEN T. LEAS, Appellee.

 

On appeal from the County Court at Law No. 4 

of Hidalgo County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Vela

Memorandum Opinion by Justice Yañez

In this interlocutory appeal, appellants, Robert S. Bennett, individually, and the

Bennett Law Firm, P.C. (collectively, “Bennett”), challenge the trial court’s denial of their

request to compel arbitration in this legal malpractice action filed against Bennett by
The Texas Arbitration Act (TAA) expressly grants interlocutory jurisdiction over denials of 1

applications to compel arbitration. TEX. CIV. PRAC. & REM. CODE ANN. § 171.098(a)(1) (Vernon 2005); see In

re D. Wilson Constr. Co., 196 S.W .3d 774, 778-79 (Tex. 2006) (orig. proceeding). Appellee asserts that “it

is undisputed that only the Texas Arbitration Act is applicable.” Appellants do not dispute this assertion. The

arbitration paragraph provides for arbitration “administered by the American Arbitration Association (AAA)”

“in accordance with the laws of the State of Texas.”

The matters referenced in the Rodriguez “Attorney Retainer Agreement” are “State Bar of Texas 2

Grievance Matters; Appeal and Motion to Reconsider – S2080103329; Maria E. Rodriguez – Stephen T. Leas

and BODA Case No. 26618; Stephen T. Leas v. Commission for Lawyer Discipline.” 

Although the record contains letters of representation and “Attorney Retainer Agreements” between

3

Bennett and Leas regarding these matters, the agreements are not signed by Leas. 

2

appellee, Stephen T. Leas. By five issues, appellants contend the trial court erred in (1) 1

determining that some of the matters sought to be arbitrated fell outside the scope of the

arbitration agreement; (2) applying the “personal injury” exception to arbitration; (3) finding

that Bennett waived the arbitration provision; and (4) finding the arbitration clause

unenforceable as against public policy. We affirm.

Background 

Leas, an attorney, asked Bennett to represent him in connection with several

pending grievance matters involving Maria H. Rodriguez. Leas and Bennett entered into 2

an “Attorney Retainer Agreement” regarding the representation; the agreement contained

an arbitration clause. A few weeks later, Leas asked Bennett to represent him in several

other grievances filed against Leas by Gloria Ruel Herrera, Daniel Alvarez, and Candelaria

Reyes. 

3

Bennett contends that Leas failed to timely pay his invoices for legal services, and

in December 2003, Bennett sought to initiate arbitration. In March 2004, Leas sued

Bennett, requesting a declaratory judgment that Bennett was not entitled to arbitration.

Bennett filed a plea in abatement, requesting abatement of Leas’ petition and enforcement
See Robert S. Bennett, Individually, et al. v. Stephen T. Leas, No. 13-04-362-CV, (Tex. App.–Corpus

4

Christi March 17, 2005) (per curiam) (memo op.)(not designated for publication). 

3

of the arbitration agreement. 

Following a hearing, the trial court signed an order abating both Leas’ lawsuit and

Bennett’s request for arbitration until the underlying grievance matters were completed.

Bennett attempted to appeal the trial court’s order; this Court dismissed the appeal for want

of jurisdiction. Bennett filed a petition for review with the supreme court, but shortly 4

thereafter, Leas advised the trial court that the underlying matters had been completed.

The trial court returned the case to its docket. 

On April 18, 2006, Bennett again requested that the trial court order arbitration.

Following a hearing, the trial court denied Bennett’s request for arbitration. The trial court

issued findings of fact and conclusions of law on September 19, 2006. The trial court’s

findings and conclusions included the following:

1. The Plaintiff [Leas] has alleged causes of action alleging legal

malpractice, breach of fiduciary duty, fraud and breach of contract against

Defendant [Bennett] concerning four (4) separate and independent cases in

which Defendant represented Plaintiff. They are known as “Rodriguez,”

“Herrera,” “Alvarez,” and “Reyes.”

2. There is no written agreement signed by the parties that involve any

issues relating to the “Herrera,” “Alvarez,” and “Reyes” matters.

3. The Defendant, in a hearing before this Court on June 10, 2004, had

stipulated to this Court that the “Rodriguez” contract only concerned the

“Rodriguez” matter and no other matter.

4. There is a written contract between the parties concerning only the

“Rodriguez” matter that does contain an arbitration clause under the Texas

Arbitration Act (TAA).

5. One of the causes of action alleged by the Plaintiff concerning the

“Rodriguez” matter is for a personal injury.
TMI, Inc. v. Brooks, 225 S.W .3d 783, 791 (Tex. App.–Houston [14th Dist.] 2007, pet. denied). 5

4

. . . . 

7. The contract was not signed by either party’s attorney of record.

8. The Plaintiff was not advised in writing by the Defendant to consult an

attorney prior to signing the agreement.

9. The Plaintiff was not independently represented when the agreement was

made between the parties.

10. The arbitration clause in the ‘Rodriguez’ matter attempts to limit the

liability of the Defendant for malpractice.

. . . . 

19. The Texas Civil Practice and Remedy [sic] Code § 171.001, states that,

for an arbitration agreement to be enforceable, that there must exist a written

agreement to arbitrate between the parties. Therefore, there being no

written contract with an arbitration agreement that exist[s] between the

parties concerning the “Herrera,” “Alvarez,” and “Reyes” matters, the

Defendant is not entitled to compel arbitration on those matters. 

20. The arbitration clause in the “Rodriguez” matter is in violation of the

Texas Rules of Professional Conduct, Rule 1.08(g), and as such is against

public policy and is therefore unenforceable. 

21. The Defendant has waived any right to arbitrate in the “Rodriguez”

matter, by substantially invoking the judicial process resulting in the Plaintiff

suffering actual prejudice. 

Standard of Review and Applicable Law

When reviewing by interlocutory appeal an order denying arbitration under the TAA,

we apply a de novo standard to legal determinations and a “no evidence” standard to

factual determinations. Under the “no evidence” standard, we view the evidence in the 5

light most favorable to the challenged finding and indulge every reasonable inference that
Id. (citing City of Keller v. Wilson, 168 S.W .3d 802, 827 (Tex. 2005)). 

6

Id. 

7

Davey v. Shaw, 225 S.W .3d 843, 849 (Tex. App.–Dallas 2007, no pet.). 8

Id. 

9

 Brooks, 225 S.W .3d at 791; Cappadonna Elec. Mgmt. v. Cameron County, 180 S.W .3d 364, 370 10

(Tex. App.–Corpus Christi 2005, orig. proceeding) (citing In re Oakwood Mobile Homes, Inc., 987 S.W .2d 571,

573 (Tex. 1999) (orig. proceeding); In re C & H News Co., 133 S.W .3d 642, 645 (Tex. App.–Corpus Christi

2003, orig. proceeding)). 

McReynolds v. Elston, 222 S.W .3d 731, 739 (Tex. App.–Houston [14th Dist.] 2007, no pet.). 11

Id. 

12

5

would support it. We must credit favorable evidence and disregard contrary evidence only 6

if a reasonable factfinder could do so. A legal sufficiency challenge to the findings of fact 7

will not be sustained if there is more than a scintilla of evidence to support the findings.8

In conducting a factual sufficiency review, appellate courts may set aside a trial court’s

finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly

wrong or unjust.

9

Under the TAA, a party seeking to compel arbitration must (1) establish the

existence of a valid, enforceable arbitration agreement and (2) show that the claims

asserted fall within the scope of that agreement. If the movant establishes that an 10

arbitration agreement governs the dispute, the burden then shifts to the party opposing

arbitration to establish a defense to the arbitration agreement. If the trial court concludes 11

the movant has met its burden and the party opposing arbitration has failed to prove its

defenses, the trial court has no discretion but to compel arbitration. 

12

Although courts generally enforce arbitration agreements, a court may not order
Cappadonna, 180 S.W .3d at 370 (citing Freis v. Canales, 877 S.W .2d 283, 284 (Tex. 1994)). 

13

Id. (citing Mohamed v. Auto Nation USA Corp., 89 S.W .3d 830, 835 (Tex. App.–Houston [1st Dist.] 14

2002, no pet., combined appeal & orig. proceeding)).

Id. (citing Jack B. Anglin Co. v. Tipps, 842 S.W .2d 266, 269 (Tex. 1992) (orig. proceeding)). 

15

In re Bunzl U.S.A., Inc., 155 S.W .3d 202, 209 (Tex. App.–El Paso 2004, orig. proceeding). 16

Id. 

17

D. Wilson Constr. Co., 196 S.W .3d at 781; McReynolds, 222 S.W .3d at 739; Cappadonna, 180 18

S.W .3d at 370. 

McReynolds, 222 S.W .3d at 740. 

19

Id. 

20

6

arbitration in the absence of such an agreement. The parties’ agreement to arbitrate 13

must be clear. If one party denies that there is a binding arbitration agreement, the trial 14

court may summarily decide whether to compel arbitration on the basis of uncontroverted

affidavits, pleadings, discovery, and stipulations. When a reviewing court is called upon 15

to decide whether the parties have agreed to arbitrate, it does not resolve doubts or indulge

a presumption in favor of arbitration. Instead, it applies standard contract principles to 16

determine whether a valid arbitration agreement exists. Whether there is an enforceable 17

agreement to arbitrate is a question of law and is therefore reviewed de novo.18

Determining whether a claim falls within the scope of an arbitration agreement

involves the trial court’s legal interpretation of the agreement, and we review such

interpretations de novo. The burden lies with the party opposing arbitration to show that 19

the claims fall outside the scope of the arbitration agreement.20

 We will not find error by the trial court and are required to uphold the trial court’s
Grand Homes 96, L.P. v. Loudermilk, 208 S.W .3d 696, 702 (Tex. App.–Fort W orth 2006, pet. filed) 21

(citing Owens-Corning Fiberglas Corp. v. Malone, 972 S.W .2d 35, 43, 41 (Tex. 1998) (requiring us to uphold

trial court's evidentiary ruling if it is proper on any grounds); Harwell v. State Farm Mut. Auto. Ins. Co., 896

S.W .2d 170, 173 (Tex. 1995) (holding summary judgment must be upheld if it is proper on any grounds)). 

In their brief, appellants refer to the trial court’s findings of fact and conclusions of law issued on

22

August 2, 2006 and on September 18, 2006. The court’s August 2, 2006 findings and conclusions are

included in its September 18, 2006 findings. Therefore, for ease of reference, we refer to the September 18,

2006 findings. 

7

ruling if it is proper on any grounds.21

Analysis 

By their first issue, appellants contend the trial court erred in finding that the Alvarez,

Herrera, and Reyes matters are not within the scope of the arbitration agreement.

Appellants contend that the “trial court’s first, second, fourth, and nineteenth findings

and/or conclusions . . . are incorrect and should be disregarded.” Appellants challenge 22

the legal and factual sufficiency of the evidence supporting the trial court’s third

finding—that Bennett stipulated to the court that the Rodriguez contract concerned the

Rodriguez matter only. 

Appellants argue that although the arbitration agreement in the Rodriguez contract

does not mention the Alvarez, Herrera, and Reyes matters, those matters are nonetheless

covered by the arbitration clause “because they were within the attorney-client relationship

of Bennett and Leas.” According to appellants, the trial court erred in failing to give full

effect to the provision stating that arbitration was applicable to any “controversy, claim, or

dispute in the course and scope of the Attorney-Client relationship or arising out of or

relating to this Agreement . . . .”
The reporter’s record reflects that the hearing occurred on June 9, 2004. The hearing addressed 23

appellee’s plea to abate appellants’ suit for collection of attorneys’ fees pending disposition of the underlying

matters. The hearing also addressed appellants’ motion to transfer venue (of appellee’s malpractice suit) and

motion to abate (same) based on the arbitration agreement. 

W e note that appellants have specifically challenged the legal and factual sufficiency of the 24

evidence supporting only the trial court’s third finding. With regard to the remaining findings, appellants simply

argue, without reference to any legal or factual sufficiency standard, that this Court “should disregard” the trial

court’s findings and conclusions. Appellee does not raise any challenge as to whether appellants have

adequately briefed their issues, and we do not address the issue. 

8

As to the court’s third finding that Bennett stipulated at a June 10, 2004 hearing23

that the Rodriguez contract concerns only the Rodriguez matter, appellants assert that the

finding is “simply not true.” According to appellants, Bennett stipulated that “the contract

in question mentions only the Rodriguez matter and no other matters,” but made no

stipulation regarding whether the arbitration clause was broad enough to encompass the

additional matters.

We begin with appellants’ challenge to the legal and factual sufficiency of the

evidence supporting the court’s third finding that Bennett stipulated at the June 10, 2004

hearing that the Rodriguez contract concerns only the Rodriguez matter. At the hearing, 24

appellee and Robert Bennett provided argument and testimony:

[Robert Bennett]: . . . To go back to testify now about these, all the cases,

by sworn answer, Mr. Leas agrees that I was hired to represent him on the

Rodriguez case. The Rodriguez case was where there was a signed

contract.

Then, as we went along in our relationship, I was also, besides the

Rodriguez case, asked to represent him—I”ll try to get these—all four

matters straight—Herrera, Alvarez-Reyes—I’m sorry. Herrera is the second.

Alvarez, slash, Reyes (Alvarez/Reyes) is the third, and Cuellar is the fourth.

And Mr. Leas testifies that he asked me to represent him besides the

Rodriguez matter in the other three. He states that he never objected to the

way that those four matters were billed. He never objected to them being

billed under one invoice number prior to the lawsuit he filed. He testifies that
The record shows that the “this” referred to is a request for admission from appellants to Leas,

25

stating:

Admit that the last sentence of the second paragraph pf Part VIII of the contract states, ‘Our

dispute shall be determined by arbitration in Houston, Texas, before a solo arbitrator, in

accordance with the laws of the State of Texas for agreements made in and to be performed

in Texas.’

9

he never objected to all matters being billed together. He never made a

written request at any time that these matters be separated out. He never

requested separate invoices. He never separated out his payments, or the

payments that he sent were for all the works [sic] provided. And, as of today,

he has provided no documentation to me or to the Court in any way

contradicting our Motion to Transfer Venue.

. . . .

[Leas]: Your Honor, once again, the basis of my objection was that he’s

[Robert Bennett] attempting to make [the Rodriguez contract] the basis of the

agreement on several different contracts, which simply cannot be done. I

denied that at—in No. 3, Request for Admissions there, I denied that they

were the same terms, the oral contracts, as the written contracts.

Now, if, one, it be stipulated that this is as to the Rodriguez matter

25

and the Rodriguez matter only, that’s what the contract says. But to the

other matters, no, sir, they’re not.

[Court]: Only—as to Rodriguez only?

[Leas]: Right.

[Court]: Not the other people?

[Leas]: Right.

[Court]: Reyes, Cuellar, and . . .

[Leas]: Yes, Your Honor. There is no written contract on those issues.

[Court]: Okay. Mr. Bennett?

[Robert Bennett]: Your Honor, I accept that. I’d like to go through and make

sure that the other requests are also either agreed or the Court takes judicial

notice.
See Shaw, 225 S.W .3d at 849. 

26

See id. 

27

10

We conclude that appellants’ argument before the trial court is essentially the same

as their argument on appeal: that the Rodriguez contract is the only “signed contract,” but

the arbitration agreement should be construed as applicable to the additional matters

because appellee “never objected” to the matters being treated collectively for billing and

payment purposes. We also conclude that the third finding—that appellants stipulated that

the Rodriguez contract only “concerned” the Rodriguez matter—does not necessarily

preclude appellants’ argument that although the arbitration agreement specifically

pertained or “concerned” only the Rodriguez matter, it should nonetheless be interpreted

to encompass the additional matters. After reviewing the record, we conclude there is

more than a scintilla of evidence to support the trial court’s third finding. We also cannot

26

say that the third finding is so contrary to the overwhelming weight of the evidence as to

be clearly wrong or unjust.

27

We now turn to appellants’ argument that the trial court erred in finding that the

Alvarez, Herrera, and Reyes matters are not within the scope of the arbitration agreement.

Appellants argue that because the additional matters are within their attorney-client

relationship with Leas, and the agreement applies to any dispute in the course and scope

of the attorney-client relationship, the matters are subject to the arbitration agreement. We

are unpersuaded by appellants’ argument.

The initial paragraph of the Rodriguez contract states:

The purpose of this agreement is to set forth our understanding and

agreement (“Agreement”), pursuant to which our law firm, THE BENNETT
11

LAW FIRM (“Firm”), has agreed to represent STEPHEN T. LEAS (“Client” or

“you”) in the following referenced matters: State Bar of Texas Grievance

Matters; Appeal and Motion to Reconsider – S2080103329; Maria H.

Rodriguez – Stephen T. Leas and BODA Case No. 26618; Stephen T. Leas

v. Commission for Lawyer Discipline (“Matters”)[.] We have, of course,

discussed these Matters with you previously, but it is prudent that our

understandings be documented to prevent any confusion or

misunderstanding in the future. 

Paragraph “C” in section “V” of the contract states:

The legal fees agreed upon herein are for representation of the Client in the

above referenced Matters and do not include Firm’s legal services in any

other matter. In the event that representation is required in any other court

or regarding any other matter, a new agreement must be made between the

Firm and the Client. 

Section “VIII,” entitled “Arbitration,” states, in pertinent part:

To further clarify our agreement on arbitration, arbitration would apply to any

controversy, claim or dispute in the course and scope of the Attorney-Client

relationship or arising out of or relating to this Agreement or the breach,

termination, enforcement, interpretation or validity thereof, including the

determination of the scope or applicability of this agreement to arbitrate. Our

dispute shall be determined by arbitration in Houston, Texas before a solo

arbitrator, 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. 

Appellants submitted the affidavit of Robert Bennett, which was attached to

appellants’ Plea in Abatement and Motion to Transfer Venue. In the affidavit, Bennett

states that Leas “had the Firm take on the additional cases, and representation in these

cases was undertaken on the mutual consent of both parties that the representation in all

cases would be handled per the terms of the original contract.”

The trial court found that there was no written agreement between the parties

regarding the Herrera, Alvarez, or Reyes matters (finding number two). It also found that
See TEX. CIV. PRAC. & REM. CODE ANN. § 171.001(a) (Vernon 2005) (providing that a written

28

agreement to arbitrate is valid and enforceable if the agreement is to arbitrate a controversy that: (1) exists

at the time of the agreement; or (2) arises between the parties after the date of the agreement).

In re Godt, 28 S.W .3d 732, 739 (Tex. App.–Corpus Christi 2000, orig. proceeding); see TEX. CIV.

29

PRAC. & REM. CODE ANN. § 171.002(a)(3) (Vernon 2005).

12

because there was no written agreement to arbitrate as to these parties, as required by

section 171.001 of the civil practice and remedies code, appellants were not entitled to 28

arbitration on those matters. We agree.

The record contains no evidence of any written agreements to arbitrate regarding

the Herrera, Alvarez, or Reyes matters (and appellants do not contend that such written

agreements exist). The statute does not provide that an arbitration agreement is

enforceable if it is based on the mutual verbal consent of the parties. We hold the trial

court did not err in concluding that appellants were not entitled to compel arbitration with

regard to the Herrera, Alvarez, and Reyes matters. We overrule appellants’ first issue.

Personal Injury Exception

In their second and third issues, appellants contend the trial court erred in applying

the “personal injury” exception in section 171.002(a)(3) of the civil practice and remedies

code because (1) a legal malpractice claim is not a claim for “personal injury” (second

issue), and (2) Bennett and Leas were both attorneys at the time they signed the

agreement (third issue). Appellants urge this Court to “disregard” the trial court’s fifth

through ninth findings of fact and conclusions of law. 

As appellants note, this Court has held that a claim for legal malpractice is a claim

for personal injury within the meaning of section 171.002(a) of the TAA. The TAA does 29
See TEX. CIV. PRAC. & REM. CODE ANN. § 171.002(a)(3), (c). 30

Leas contends that at the time he signed the Rodriguez contract, he was not licensed to practice

31

law in the State of Texas. W e need not address this argument. 

See id. at § 171.002(c) (emphasis added). 32

W e note that appellants’ argument—that a party meets the requirement if he/she is an attorney—

33

is best directed to the Texas Legislature. W e also note that in this case, there is no evidence suggesting that

either party (both of whom were lawyers) was acting in his capacity as a lawyer representing himself as a

party. We express no opinion regarding whether any such evidence could satisfy the statutory requirements.

13

not apply to a claim for personal injury unless each party to a claim, on the advice of

counsel, agrees to arbitrate in writing, and the agreement is signed by each party and each

party’s attorney. The trial court found that (1) one of appellee’s claims in the Rodriguez 30

matter was a claim for personal injury; (2) neither party’s attorney signed the agreement;

(3) appellee was neither advised in writing to consult an attorney before signing the

agreement nor independently represented when signing the agreement.

Although appellants urge us to “disregard” the trial court’s finding that the Rodriguez

contract was not signed by either party’s attorney of record, the record is clear that it was

not. The only signatures that appear on the contract are those of Leas and Robert

Bennett. Appellants argue that even if we find that appellee’s malpractice claim is a claim

for personal injury, the arbitration clause nonetheless complies with the TAA’s

requirements because both parties were attorneys. The statute, however, provides that 31

arbitration does not apply to personal injury claims unless “each party to the claim, on the

advice of counsel, agrees in writing to arbitrate” and “the agreement is signed by each

party and each party’s attorney.” The statute does not provide an exception if the parties 32

are attorneys. We hold the evidence is legally and factually sufficient to support the trial 33
See Taylor v. Wilson, 180 S.W .3d 627, 631 (Tex. App.–Houston [14th Dist.] 2005, pet. denied); 34

Miller v. Brewer, 118 S.W .3d 896, 898 (Tex. App.–Amarillo 2003, no pet.) (per curiam); In re Hartigan, 107

S.W .3d 684, 690 (Tex. App.–San Antonio 2003, orig. proceeding). 

In re Hartigan, 107 S.W .3d at 690. 

35

See id. 

36

See id. at 687. 

37

Miller, 118 S.W .3d at 898. 

38

14

court’s finding that “[t]he contract was not signed by either party’s attorney of record.” We

overrule appellants’ third issue. Thus, if appellee’s legal malpractice claim is a claim for

personal injury, the trial court did not err in denying arbitration because the Rodriguez

contract does not comply with section 171.002(c). 

Appellants note that since this Court’s holding in Godt, three of our sister courts

have held that a legal malpractice claim is not a claim for personal injury. In In re 34

Hartigan, the San Antonio court relied on a “plain reading of section 107.002" to conclude

that a legal malpractice claim “is not specifically prohibited from arbitration.” The Hartigan 35

court criticized our reliance on the cases cited in Godt, and argued that there is nothing in

the legislative history of section 107.002 to show that the legislature intended for the

personal injury provision to extend to legal malpractice claims. In Hartigan, the plaintiff’s 36

legal malpractice claim against her attorneys arose from her representation in a divorce

proceeding.37

In Miller v. Brewer, the Amarillo court followed the rationale of the Hartigan court in

“refus[ing] to hold that a legal malpractice suit [is] per se one for personal injuries.” The 38

Miller court reasoned that the plaintiff’s legal malpractice claim arose “out of a suit for
Id. at 898-99. 39

Taylor, 180 S.W .3d at 631. 

40

Id. at 630. 

41

Id. 

42

Id. at 632 (Frost, J., concurring). 43

Id. at 632-33. 

44

15

economic losses as a result of employment discrimination,” and was therefore—like the

malpractice claim in Hartigan arising from representation in a divorce proceeding—“not a

suit for personal injuries” within the purview of the statute.39

Finally, in Taylor v. Wilson, the Fourteenth Court of Appeals reached the same

conclusion as the Hartigan and Miller courts in holding that a legal malpractice claim is not

a claim for personal injury. In Wilson, the court noted that the plaintiff’s “underlying claim 40

was for economic losses rather than for personal injury.” The Wilson court also relied on 41

the legislative history of the TAA, which, according to the court, “reveals the legislature

intended to restrict the scope of the personal injury exception to physical personal injury.”42

In his concurring opinion in Wilson, Justice Frost noted that “[t]he term ‘personal

injury’ has been used in both a narrow sense of ‘bodily injury’ and a broader sense,

meaning a personal wrong, including libel, slander, malicious prosecution, assault, and

false imprisonment, as well as bodily injury.” Justice Frost concluded that a legal 43

malpractice claim is not a personal-injury claim under either the narrow or broad definition

because it “does not involve bodily injury, and it does not involve injuries to rights regarding

the person.” Justice Frost also criticized the majority’s legislative history argument, noting 44
Id. at 634 (citing Robert J. Kraemer, Attorney-Client Conundrum: The Use of Arbitration Agreements 45

for Legal Malpractice in Texas, 33 ST. MARY’S L.J. 909, 933 n.139 (2002).

Sample v. Freeman, 873 S.W .2d 470, 476 (Tex. App.–Beaumont 1994, writ denied). 46

Estate of Degley v. Vega, 797 S.W .2d 299, 302-03 (Tex. App.–Corpus Christi 1990, no writ). 47

Godt, 28 S.W .3d at 738-39. 48

W e note that this issue is currently before the supreme court. In the appellants’ brief in Chambers,

49

et al. v. O’Quinn, 2007 TX S. Ct. Briefs LEXIS 592, **15, appellants state: 

The Supreme Court should exercise jurisdiction to hear and decide the most important issues

of whether a compulsory arbitration clause, in an attorney-client contingency fee contract

involving a personal injury/property damage case is enforceable, and whether, incidental to

that overriding issue, whether the Petitioners “intentionally, voluntarily, intelligently and

knowingly” waived their constitutional right to a trial by jury.

16

that it relies solely on a statement expressing an opinion of the author of a comment, and

is therefore, “not part of the legislative history at all.” 

45

In Godt, we cited Sample v. Freeman and Estate of Degley v. Vega in support 46 47

of our holding that a legal malpractice claim is a claim for personal injury within the

meaning of section 171.001(a). We recognize that our sister courts have declined to

48

follow Godt. However, absent guidance from the supreme court on this issue, we decline

to abandon our earlier precedent. We conclude the trial court did not err in finding that 49

one of appellee’s claims in the Rodriguez matter (legal malpractice) was a claim for

personal injury. We overrule appellants’ second issue. 

Because we have determined that appellee’s legal malpractice claim is a claim for

personal injury within the meaning of section 171.001(a), and the Rodriguez contract does

not comply with the statutory requirements of section 171.001(c), we hold that the trial

court did not err in denying arbitration. Accordingly, we AFFIRM the trial court’s order
See Loudermilk, 208 S.W .3d at 702. 

50

See TEX. R. APP. P. 47.1. 51

17

denying appellants’ request to compel arbitration. 

Because we are required to uphold the trial court’s ruling if it is proper on any

grounds, we need not address appellants’ remaining issues. 

50 51

 

LINDA REYNA YAÑEZ,

Justice

Dissenting Memorandum Opinion 

by Justice Rose Vela.

Memorandum Opinion delivered and 

filed this the 26th day of June, 2008.