Reversed and Remanded and Memorandum Opinion filed July 7 , 202 2

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00926

- CV

CHARLES F. HERD, JR. ; HERD LAW FIRM, PLLC ; W. MARK LANIER;

AND THE LANIER LAW FIRM, P

. C

. , Appellant s
V.
SHERI ALLEN DO RG A N A/K / A SHERI D OR GAN ALLEN , Appellee

On Appeal from the 234th District Court

Harris County, Texas Trial Court Cause No. 2019

- 31827

MEMORANDUM OPINION
In this interlocutory appeal, a ppellants Charles F. Herd , Jr. and Herd Law
Firm
, PLLC (Herd Appe llants ) a nd W

. Mark Lanie r and T he Lanier Law Firm
, P

. C

. (Lanier Appel lants ) raise a single issu e on review : the trial court abused its discretion in denying their motions to compel arb itration because t here was a legally binding and enforceable arbitra tion agre e men t w ith respect t o the claims at
issue in the case and appell ee did not prove any valid defenses

. We reverse

.2 I. B ACKGROUND

A. Agreements Between Appellee and Appellants
Appellee Sheri Allen Dorgan was alleged ly injured and suffered sig ni ficant inju rie s a n d dam a g es as a result of the B P Deepwat er Horiz on oil

- well leak

. In 2014, appellee hired the Lanier Appellants to represent her in her personal injury
action and sig ned a Power of Attorne y and C o ntingent Fee C o n tr ac t ( L a nie r Agreement )

. The Lanier Agreement ind icates that appellee retained the Lanier Appellants to “ prosecute claims against BP Oil Spill . . . arising from the leg al injury of [appe llee]

. ” The Lanier A g reement contains an a rbitrat ion cl aus e

. A ppel l ant Charle s Herd was an a ttorney working on ap pel lee ’ s case at the Lanier
Law Firm and signed the Lanier Agreement for the Lanier Firm

. The Lanier Appellants represented appellee in federal court in Lou isian a ( Oil Spill Case)

. D organ v. BP
, P.L. C. , No. 1 7

- CV

- 03367 (E.D. L a .) , No. 19

- 30440 ( 5th C ir. )

.
I n August 201 8, Her d left the Lanier Law Firm and started the Herd Law
Firm. T he Lani er Law Firm sent a letter to app ellee indicating Herd ’ s departure
and that both the Lanier Law F i rm and Herd woul d li ke t o con tinue repr esenting appellee and work on the O il Spill Cas e toge ther . Attached to the letter was a document titled “ C onsent to R efer

. ” 1 The C onsent to R efer indica ted that both the
Herd Law Fi rm and Lanier Law Firm would “ assume joi nt respon sibil ity f or the representation of

” appellee

. In November 2018, a ppe llee e xecuted a Power of Attorne y and Co ntingent
Fee C o ntract with th e Herd Appellants (Herd Agreement)

. Th e Herd Agreement
indicates th at appellee retained the Herd Appellants “ to assume th e ro l e of counsel

1 T he Conse nt to Refer attac hed to a pp ellee ’ s response to appellants ’ motion to compel arbitration was unexecu ted. Appellee i nd ica te d in her affidavit that she “ under stood that the new agreem ent with Herd, alon g with the conse nt to refer, now govern ed

. ”3

fo r the prosecution and trial of cla ims against

_____ ______ arising from the legal injury of [appe llee ] , individual ly and on behalf of the Esta te of [appel lee ’ s husband], Dece ased , and to recover all compensati on and other b enefits to whi ch [ a ppellee] may be entitled, as well as to compromis e and settl e any and all claims arising out of the wrongful death o f [appellee ’ s husband]

. ” 2 The H e rd Agreement
does n ot contain an arbitration cla use but ins tead agrees to first try to m ediate an y d isput e s . If mediation is unsuccessful, ei ther party may file suit in Har ris C o unty,
Texas.

It is undisputed that both the Lanier Appella nts and the Herd Appellants

con tinue d to represent appellee in the Oil Sp ill Case after Herd left the Lan ier Law
Firm . Ap p e llee attests that she consented to the jo int repr esentation.

B. The Oil Spil l Case
In the Oil Spill Case , the court ordered appellee to file a “ particularized

statement of c laim ” on or before July 9 , 2018. It is undisputed that appel lee ’ s claim was not f

i led by this date. In August 2018, the court rend ered a “ sho w

caus e ” order . The show cause order gave appelle e until October 11 , 2018 to “ sho w

cause ” why her claims sh ould not be d ismissed for missing the July deadline. Appellee ’ s cou nsel filed a resp o n se

. 3 However, the court did not find the reason
f or missing the d eadline sufficient and dismissed the Oil Spi ll Case with prejudice. Appellee ’ s Lawsuit Against Appellants

In May 2019 , appelle e filed suit again s t appellants alleging that due to their negligence and gross neglig ence, appellee ’ s claims in t he Oi l Spill case were dismissed with preju dice. The Lanie r App ellants filed a Motion t o Abate and
Co mpel Arbitr ation
, and the H erd Ap pellant s joined. A p p ellee f iled a response
,

2 There is a blank li ne in th i s clause.

3 It is not cl ear from the record who filed th e respons e in the Oil S pil l Case

.4

attaching exhibits and her affidavit. The trial court denied the motion to aba te and

compe l a rb itration. This interlocutory appeal fol lowed

.

II. M OTION TO C OMPEL A RBITRATION Appellants argue that the trial court abused i ts discretio n in d e nying their
motions to compel arb itration because : (1) t her e was a legally binding and
enforc eable arbitration agreement with respect to the claims at is sue i n the case ; and (2) appell ee did not prove any va lid defenses. Appel lee resp on ds th at the Herd
A g reement did not contain an arbitration clause and supersede d the L anier Agreement

. Appellee also contends the trial court correctly declined to c ompel

a rbitr ation because appellee de monstrated that the arbi tration provisi on was

uncons ci on ab le.

A. Gene ra l L e g al Principles

A part y seek ing to compel arbitration bears t he burd en to establish that an
arb itration agreement exists and that the claims presented fall within it s s cope. Henry v. Cash Biz, LP , 551 S.W.3d 111 , 115 (Tex . 2018) ; Nation wide C o in &
Bul lion Reserve , Inc

. v. Thomas , 625 S.W.3d 498, 503 (Tex. App.

— Houston [14th Dist.] 2 020, pet. denied ). If this burden is met, then the b urden shifts to the party

oppo sing arb i tration to prove an affirmative defense to the pr ovision ’ s

en for ce ment , such as u nconscio nabi lity
, t o av oid arbitration

. See Henry , 625
S.W.3d at 115

. “ I f there i s con flicting ev idence as to the material facts necessary
to determine the issues
, the trial court is to conduct an eviden tiary hearing to

re solve the dispu te

. ” Thomas
, 625 S.W.3d at 5 03

. W hen a motio n to compel arbitration is denied , we apply an abuse

- of

discretion st a ndar d

. Id

. We defer to the trial court ’ s factual determinations if t hey

a re supported by the eviden ce and review the legal determinations d e novo. Id

.5

Whether a val id ar

b i tration agreement e xists is a legal question. In re D. Wilson
C onst r. Co. , 196 S.W.3d 774, 781 (Tex. 2006). “ In inter p reting the parties ’ agreement, we ap ply or dinary contract p rinciples. ” Valerus C ompr ession Servs.,
LP v. Au stin , 417 S.W.3d 202, 208 ( T ex. App.

— Houston [1st Dist.] 2013, no pet.).
We consid er and e x amine the entire writing to tr y to harmonize and give effect to all provisions of the c ontra ct so none will be rendered meaningless. Id

. “ [ A] n arbitration c la use t hat includes a ll ‘ di spute s , ’ and not just claims, is very broad and

encompasses mo re than c laims ‘ based sol ely on rights originating exclusively from
the contract. ’ ” Henry , 551 S.W.3 d at 115

– 16 (quoting Pinto Tech. Ventures, L.P

.

v. S he l don , 526 S. W .3d 428, 439 (Tex. 2017)). A n agr e e ment to supersede or
revoke a prior arbitration provisi on mu st d o so in une qu ivocal terms such that the subsequent agreement cannot be harmonized with the a rbitration provision.
Valerus Com

pression Servs. , 417 S.W.3d a t 210; see als o J.M. Davidson, Inc. v

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

. B. Is there a n Enforce able Arbitrat ion Pro vision?
Appellants first a r gue that the re is an enforceable arbi tra tion agreement and that appel lee ’ s claims fa ll within its scope. Ap pellee does no t dispute that s he

en t e red int o the Lanier Agreement and does not argue that t he claims she a ss erts

are ou tside of the scope of the arbitration provision. Instead of challenging the Lanier Agreement directly, appellee argues that a la ter agr eement between herself
and ano ther la w firm supersed ed the Lanier Ag reement. 4

The Lanier Appellan ts at tache d the L anier Agreement to their motion to

co mpel arbitration and support ed it by affidavit. U nder the Purpose of

4 Appellee ’ s only direct challenge to the La nier Agreement is th a t th e ar bitration provi sio n is unconscio nable. Because unconscionability i s a d efe nse to arbitr ation
, t his challenge is ad dressed below

.6

Representation heading, the Lanier A greement provides that “ Cl i ent hereb y retains
and employs the Lanier Law Firm to prosecute claim s aga inst BP Oil Spill . . . airing from the legal inj ury of Clien t (the “ Case ” ) a nd to recover compen sa tion to

w hich Client may be enti t led

. ” The arbi t ration pr ovision provides t hat “ [a]n y and
all disputes, controversies, claims or demands arising out of or relating to t his Agreement or any provision hereof, the providing of se rvices by A ttorneys to Client, or in any way relating to the relationship bet w een A tt or ne ys and Client

. . . shal l be reso lved by binding arbitration

. ” Both a ppellee and the Lanier App ellan ts

exec uted the Lanier Agreeme nt. 5 T h e Lanier Appellants ’ uncontroverted evi den ce established the existence of an arbitration agreeme nt

. C. Are A ppellee ’ s Claims W ithin the Scope ?

The “ sco pe of an arbitration clause that inclu des a ll ‘ d isputes, ’ and not just
cla ims, is very broad and encompasses more than claims “ b ased solely on r igh ts

or iginating exclusively from the contract. ” Henry , 5 51 S.W.3d at 115

– 16 (citi n g Pinto Te ch. Ventures, L.P. v. Sheldon , 526 S.W.3d 428, 439 (Tex. 2017) ). “ Doubts regarding an agre ement ’ s scope are resol ved in favor of arbitration because there is

a pre sumption favoring agreements to arbitrate under the FA A

. ” In re K ellogg
Brown & R o ot, In c. , 166 S.W.3d 732, 737 (Tex. 2005). We focus on the factua l allegat ions in determining whethe r the claims made are w ithin the scope of the
arbit ration agreement. Hen ry , 551 S.W.3d at 115.
Appellee ’ s suit agai nst appel la nts alleg es that appellan t s failed t o “ address at

5 The signatory for the L anie r Law Firm in the Lanie r Agreement was Herd

. The Herd App ella nts jo ined in th e mot ion t o compel arbitration and a dopt the position t hat they are subject to the terms of the arbitration provision wit hin the Lanier Agreement for the claims a ss erte d against t hem in this suit

— “ t his places all claims ag ainst the Herd Defenda nt s within t h e br oad

s cope of the Arbitration Provision

. . . . ” Further the Herd Appellants “ have voluntarily agreed to participate in arbi tratio n

. ” See T aylor Mo rrison of T

ex., Inc. v. Sk ufca , No. 01

- 20

- 00638

- CV, 2021 WL 6138979 , a t *16 (Tex. A pp.

— Hous to n [1st Dis t .] D ec. 3 0, 2021, no pe t. ) ( party can
mo ot unconscionability issue th rough agreement )

.7

least three orders ” in the O il Spill Case. These failures le d to the judge i ssuing a

“ show cause order on August 20, 2018 where in he required plai nti ffs like [appe lle e ] to ‘ show cause in writing on or be fo re Octobe r 11, 2018 why t h is C o urt

s hould not dismiss ’ ” her claims with prejud ice. 6 Appellee alleged that because appellants f

ailed to “ timely respond to this show cause order ” a ppellee ’ s Oil Spill
Ca se was dismissed with preju d ice. Appellee asserted c aus es of act ion for neglige n ce and gro ss negligence against appellants because in the Oil S p ill Case appellants failed to (1) pro tect appe llee ’ s interest; (2) properly represent app ellee; (3 ) diligent ly r epresent ap pellee; and (4) follow court orders

. Gi ven the broa d language of t h e arbitrat ion provision and t hat the claims
asserted by appell ee in the tria l court arise from and ar e related to appellants ’ representation in the Oil S pill Case , we concl ude they are wi thin the sc ope of the arbitration provisi on. See Pru dential Sec. In c . v. Marsh all , 909 S.W.2d 896, 899 (Tex. 1995) (presumption favoring arbitra tion “is so compelling th at a court should

n ot deny arbitration ‘ unless it ca n be said with posi tiv e assurance that an arbitration
clause is not suscept ibl e of an i nterpretation w h ich would cover the dispute at issue.’ ” (quoting Ne al v. Hardee ’ s Food Sys., Inc. , 918 F.2d 34, 37 (5 th Cir. 1990) ) )

. D. Was the Lanier Agreement Supersede d by the He rd Agree men t ?
Appellan ts argue that because the Lanier A p pella nts are not p art ies to the
H e rd Agreeme nt , and it did not sup ersede or revoke the Lanier A greement in

“ un equ ivocal ” terms , appell ee has failed to prove this defense to the arbitratio n

6 Appellee does n ot state in her p etition what thr ee orders were unaddressed or the dates on which the se failures occurred

. However, appella nts ’ alleged failures t o addre ss the court ’ s orders result ed in a “ s how cause order ” on August 20, 2018

— only twe nty days a fter Herd le ft the Lanier L aw F irm and approximatel y three months prior to appel le e ’ s execution of the Herd Agree ment in November 20188

provision

. A p pel l an ts furthe r argue that the t wo agreement s can be harm oniz ed

. A pp ellee argues th a t the Herd Agreement superseded the Lanier Agreement
, and because the Herd Agreement does not contai n an arbitration provision
, she
cannot be compelled to arbitrate. It is und isputed that the Lanier A p pellants did

not e xecut e the H erd Agree ment

. Appellee ’ s argum ent is based on th ree rationales. First appellee argues the Herd A g reement represents that it is the “ sole and only ” agreement between the “ parti es

. ” Second appel l ee argues the Lanier Appellants are bound as appellee ’ s “ le gal repre sentatives, suc c es sors and assigns

. ”
Third appellee argues the Lanier Appellants are third

- party benefici a ries und er the Herd Agreement.

1. “ Sole and Only ” Agreement

U nder the heading “ P rio r Agreements Superseded ” the Herd Agreeme nt

states : “ Thi s A g reeme nt constitutes t he sole a n d only Agreement of the parties hereto. It supersede s any prior understandings (w ritten or oral) between the parties

res pecting the subject ma tter of this Agree m ent

. ” Appelle e argues that the “ subject

mat ter ” inclu des h ow any “ d isputes, contro v ersi es, c l aims or demands arising out of or relating to . . . the providing of services by A tt orney s to Client, or in any way relating to the relationshi p bet ween Attorney s an d Cli ent ” would be handled.

How disput es are han dled between t he parties to t h e agreeme n t is not the

“ subject matter ” of the agreement i tself ; i t is a mechanism to provide for p otential disputes that may arise during their cours e o f deali ng regarding th e subject matter. The subject ma tter of the agree ment i s more pr operly conside r e d to be th e reason the parties are enter ing into a contrac t or what they are exchanging. See Black ’ s Law Di c tionary ( 11 th Ed. 2019) ( “ s ubject ma tter 1. The iss ue presented fo r consideration ; the thin g in whi ch a right or dut y ha s been asse rted; the thin g in dispute

. ” ). In the Herd Agreement
, appellee provides a percentage of her interest
,9

both individ ually and on behalf of the estate of her husband , i n a ny lega l damages

o r co mpensation to the Herd Appellant s in exchange for their prosecuti on of those
cl a i ms. Thus, the Herd A greement only “ supersed es an y prior understandings ” respecting this specific s ubject matter. 7
Appellee prof

fers that the lang u age “ [t] hi s A g reement con stitutes the sole and only Agreem ent of the partie s here to ” rende rs the Lanier A g reement de funct. However, there is a reading of this sentence that would harmoni ze the two

agreeme nts

—

that the term “ the parties hereto ” means only t he signato ries to the
Her d Agreement. Se e Valerus Com pres sion Servs. , 417 S.W.3d at 210 ( a n agreement t o supersede or revoke a prior arbitration provision mu st do so in

une quivocal terms such that the sub sequent agreement cannot be harmonized with
the arb itr ation p rovision

. ) ; see also Webster , 128 S.W.3d at 227

. Such a reading
, parti cularly w hen tak en in t he conte xt o f the sentence following it, would
harmonize the Herd and Lanier Agreements

. See McMahan v. Greenwood
, 108 S.W.3d 467, 49 1 (Tex. App.

— Hou st on [14th D ist.] 200 3, pet . denied ) ( “ [ I ]n construing a wri tten contract, c ourts s hould exa mine a n d con s i der the enti re writing in a n effort to harmonize and give e ffect to al l the provisions of the

contrac t so that none will be rendered meaningless. ” ).

2. “ L eg al Rep resentativ es, Su cc essors and Assigns ”

7 A ppellee argu es that the “ Purpose of Repres entation ” contained a blank line th at was not completed
, and b ecause of this
, she pro vided parol eviden c e “ to the exte nt nec es sary to remove any ambig uity o r c omplete the co ntract ’ s terms. ” Appellee then testified o nly that the Herd Ag r ee ment “ rep laced the one that [she] signed with the Lanier firm ” and that she “ w as told that the Herd ag reement superseded ” the Lanier Ag reemen t. T his testimony is conc lusory an d regards appe llee ’ s subjective belief , it does not provi de evidence of what sho uld have been o n the blank line in the Herd Agreement

. See Olivares v. Brown & Gay En g ’ g, Inc. , 401 S .W.3d 363, 372 & n .7 (Tex. App.

— Housto n [14th Dist.] 2013)
, aff'd , 461 S.W .3d 117 (Tex. 2015) ( “ C onclusory affidavit testimony is s ubstantively defective , is not sufficient to raise fact issues, and amounts to no evidence.” ).10

A p pellant s also argue that the He rd Agreem ent could no t hav e superse ded
the Lanier agreement because the Lanier Appellants di d not sign the Herd Agreement. Appellee ac knowledge s that the Lanier Appellants did n ot exe cute the
H erd A g reement but argues that the Lanier Appellants are bound as appell ee ’ s

“ legal r epre sentative s, succes sors and assigns

. ” Appellee argues that the Lanier Appellants are her “ legal re presentatives ” because she testified that they were he r lega l represen tative s and because the y filed legal p lea dings on he r b ehalf a fter the Herd Agreeme n t wa s signed.
First, t here is no evidence that the Lanier Appellants knew about the Herd Agreement a nd then filed legal pleadings on appellee ’ s behalf

. S econd, appellee ’ s
test imony that she “ sti ll considered Lanier my attorn eys joi ntly with Herd ” does

n ot explain wh y or how the Lanier A ppellan ts are considered “ legal representatives ” under the terms of the Herd Agreement. See Davis

- Lynch, Inc. v. Asga r d Tech s., LLC , 4 72 S.W .3d 50, 62 (Tex. App.

— Houston [14th Dist .] 2015,

no pet. ) ( “ Our p rima

r y concer n in interpretin g a contract is to ascertain and give effect to the intentions of the parties as expresse d in the instrument. We therefore give terms thei r plain and ordin ary me aning unless the contract indicates that the parties int ended a d iffe r ent mean ing

. ” ). Th ere i s also no evidence or argume nt that
the term “ legal representative
, ” undefined in the Her d Agre ement , means or includes the Lanier Appellan t s. Se e McMahan
, 108 S .W.3d at 490 ( “ Our re search reveals that a majority of c ourts, wh en c o n fronted with the issue of whether an attorney falls within the definition of the term ‘ legal representatives, ’ h ave rejected the argument . . . . ” ). In the Herd A greement , the “ P arties Bound ” provision states
that “ This Agre ement s hall be b inding up on a n d inur e to the benefit o f the part ies hereto and, to the extent permitt ed by applicable law, their respective he i rs, executors, administrators, legal representative s , successors an d assi gns. ” Because11

the term “ legal represent ative s ” occ urs i n a phras e wh i ch in cludes various enti ties which contemplate prospective parties or h older s o f an interest in a n action, rather than agents or those engaged in the practice of la w, it seems “ mor e like ly that the [contrac t ] was referring to some so rt o f leg al party subs t itute ” rather than appel lee ’ s attorneys or the Lanier Appellants. 8 See McMah an , 108 S.W.3d at 491.

3. T hird

- Part y Beneficiar y

A ppellee next argues that the Lanier Appel lants are consid ered third

- party benefici aries under the H e rd A gre ement because i t “ c onferred benefits ” on th e Lanier Appellants

. Appellee contends t hat bec ause the Herd Agreement allowe d
the H e rd Appellants to associate additional lawyers to assist in representing appel lee, that although not specifically name d in th e H erd Ag reement, it i s referring to the Lanie r Appellants as third

- party beneficiaries

. A c ourt cannot create a third

- party benefici ary by implication. Tawes v

. Barnes , 340 S.W.3d 419 , 425 (T ex. 2011 ). T h e pres umpti on is that the parties to

an agreeme nt contra cted only fo r themselves. City of Ho uston v. Williams , 353 S.W.3d 128, 145 (Tex. 201 1). We resolve all doubts against confer ring third

- party beneficiary stat us. Tawe s , 340 S.W .3d at 425.

T h e prov ision does not
, in and o f itself
, confer any be nef it upo n the Lan ier Appella nts. The “ Referr al or Association of Additional Counsel ” provisi on provides that “ Client a grees that A tto rneys may refer this matter to another law yer or law yers or associat e one or more a dditio nal lawy ers to assist in represe nti ng Cli ent and p ros e cuting Case[;] Prior to any such referral or association, Client sh all

c onsent in writi ng to the terms of the a gr eement

. . . . ” The provision provides three
disclos ures that mus t b e made and approved by the cl ient prior to the associati on or

8 Further, the parties could have easily and s p ecifically named t he Lanier Appellants in the Herd Agre emen t but did not do so.12

referral bei n g made. Unde r the terms of the Herd Agreement, if such a referral is
made , then an associating lawyer o r firm ma y become entitled to share in the fee

recovery provi d ed by the Herd Agree m ent

. However, no such benefit i s conferred
until a refe rral, agr ee d to by appellee, is made.

A ppellee attached a C o nsent to Refer agree ment , sent to her by the Lanier Appellants
, to her respons e

. 9 In her affida vit attached to her response , appellee

att ested that s he “ un d erstood that the new agreement w ith Herd, alon g w ith the

consent to refer, now governed inste ad of the Lanier a greement and considere d the Lanier agreement, and it s arbitration provision, void. ”

The Consent to Refer Agreement states :
S her i Allen Dorgan ( “ Client ” ) has previously execut ed a C o ntingent f ee Agre ement (t h e A greement) retaining The L anier Law Firm, P.C. ( “Referring Attorne y ”) to represen t Client in reg ard to certain matters and/or cau ses of action identified in the Agreem ent. The A gree ment
a l so provi des that Referring Attor ney, with Client ’ s writt en consen t
m ay re fer the Cl ient ’s mat ter to anothe r attorney to prosecute the Client ’s cause of action.
Re ferring A ttorney has recommended that the Client ’ s matter be referred t o the H e rd Law Firm t o represe nt Client and to prosecu te [her] causes o f actio n. Clien t a grees that Referring A tto rney may refer [her] matter to Associat e d Counsel to the Her d Law Firm to pr osecute Client ’ s cause of a ction. It is further understood that:

. . .
c. if a recov e r y is mad e on behalf of C lient, t he total attorne ys fees

as conve ye d in the Agreement will be divide d as follows:

T he C ons ent to Ref

er does not mention th e Herd A greement, but instead references the Lanier Agreement and the terms the reof, including t he “ t otal fees a s c onveyed

9 Appellee also attached a lette r from the Lanier Appe llants da ted August 3 , 2018 , w hich enclosed t he Consent to Refer agreement

. The lette r and Conse nt to Refer were sent to a ppe llee

mor e than two months be fore t he Herd Agreement was executed. Appellee did not testify as to when she ag reed to the Consent t o Refer and di d not pr ovide an execute d c opy.13

in the Agre ement. ” Thus, e ven whe n conside ri n g the unexecuted Consent to Refer,
it makes no mention of the Her d Agreement and fails to confe r any benefit of the
Herd A g reeme nt upon the Lanier Appella nts. A s a r esult, a ppellee has f a iled to overcome the presumption that the parties only c ontracted f o r themselves
, and w e

reso l ve all doubts ag ai nst conferring third

- party beneficiary status. See Will iams , 353 S.W.3d at 145; Tawes , 340 S.W.3d a t 42 5.

4. Conclusion

To supersede or re voke a n earlier arbitration provision, the agreemen t mu st do so in une qu iv o cal terms

. See Vale rus C ompression Servs

. , 417 S.W.3d at 210. We agree wi th appella nts that appellee has not shown that the Herd Agreement
cl early and unequivocally revoke d or sup ersede d the Lanier Agreement and the arbitration provis ion ther ein. We co n clude tha t u nder the fact s, circum stances , and evidence presen ted herein th e Herd and Lanier A greement s can be read
harmoni ously , and t hat the arbitration provision w as not supersed ed or r e voked

. E. Does the Arbitration Provision Render the Lani er A g reem en t Unconscionable? Appella nts argu e that a pp ellee failed to show the expected or likely costs o f arbitration because appell ee o nly p rovided evid ence of pote ntial costs charged by
the AAA a n d the arbitration provision does not require tha t arbitr ation be

co n ducted with the AAA. The H e rd Appellants a lso assert that the agreement is not unduly burdens ome because appel lee would not be forced to bring her claims
in two sepa rate forums sin ce the Herd Appellants have agreed to arbitrat ion. App ellee re sponds th at the arbitration provision renders the Lan ie r Agreement
unconscionable because her eviden ce sho wed that her financial state prevented her
f rom e ffectively vindic ating her r ights thro ugh ar b itration
, the “ expected ” or14

“ likely ” high c osts of a rb i tration
, and that a rbitra tion would be su bs tantially more
expens iv e than litigation for her claims

. Unc onscionabl e contracts are un enf orcea ble

. In re O lshan Foun dation Repair C o. , LL C , 328 S.W.3d 883, 892 (Tex. 2010). Texas law re cognize s both

su bs t a ntive and procedural unc onscionability

. I d

. “Substantive unconscionability
refers to the fairness of the arbitration provision itself, where as procedural
unconscio nability refers to th e circumstances surro unding adoption of the
arbi tration p rovision. ” In re Palm Harbor Homes, Inc., 195 S.W.3d 6 72, 677 (Tex. 2006). Because ap pellee complai ns of the prohibit ive cost of arbitration, appellee ’ s claim is grounded in su bsta ntive uncon sciona b ility. See Olshan , 328
S.W.3d at 892

.

“ Gener ally, a c ontract i s u nc onscionable if, ‘ given the parties ’ gen er al commercial background and the commercial needs of the particu lar trade or case,
the clause involv ed is so one

- sided t hat it is unconsci onable under the circumstances existing when the parti es made t he contra ct

. ’ ” Id

. (quoting In re
F irstMerit Bank
, 52 S.W.3d 749 (Tex. 2001 ) )

. “ [A] n arbitration agreement may render a contract unconscionable if ‘ the existence of large a rbi tration costs c ou ld

p r eclude a litigant . . . from effectively v indic ating [hi s or her] f e deral s tatutory right s in the arbitral fo ru m. ’ ” Id . (quo ting Green

- Tree Fin Corp.

- Ala. v. Randolph
, 5 31 U.S . 79 (2000) ) ; see also First M erit Bank , 52 S.W.3d at 7 56.

The party op posing the arbitration bears the burden to show t hat t he costs of
arbitr at i on render it unconscionab le. Olshan , 328 S .W.3d at 893. W h en “ a party seeks to invalidate an a rbitration a greement on the grounds that it wou ld be prohibitively exp ensive, that pa rty be a rs the burden of showing the likelihood of
incu rring suc h costs. ” G reen Tree , 531 U.S. at 92

. S ome evidence t hat a complaining party will likely incur arbitration costs in su ch an amount as to deter15

enforcemen t of statutory right s i n the arbitral forum i s required. Olshan , 328
S.W.3d at 893 ; see al so Green Tree , 5 31 U

. S. at 92 ( “ [P] arty seek[i ng] to
invali dat e an arbitration agreement on the ground that arbitration would be prohibitively expensive . . . bears burden of showing t he li kelihoo d of i ncurri n g such costs. ” ). “ Ev idence of the ‘ risk ’ of po ssible co sts of ar bi t ration i s insuf ficient

ev idence of the pr oh ibitive cos t of the arbitration forum. ” Olshan , 328 S.W.3d at
89 5. To be sufficient, the evidence m ust show that appel lee is likely to b e char g ed
excessive arbitration fees. See i d

. Whe re the part y resisti ng arbitrati on cited the A me rican A rbitratio n A ssociation ( AAA) costs b ut provided no evidence that the AAA wou ld c onduct the arbitration or charg e her the fees she iden tified
, the Sup reme C o urt d eemed
such evidence insufficient to defeat arbitrat ion. Gre en T ree , 531 U.S. at 522 &

n .6. Similarly, th e Texas S u preme C o urt held evidence of AAA costs and fees
insuffi cient where there was no evidence t hat the AAA would actua lly conduct the
arbit r ation and the provision did not require a rbitra tion with the AAA

. F irstMerit
Bank , 52 S.W.3d at 757

.
E v en crediting all of appellee ’ s evidence in favor of the trial cou rt ’ s finding, 10 a ppellee has failed to show that she wil l a ctually be char ged ex c es sive

10 A p pellee presented evidence that she has been unable to work and without income sinc e May 2010. Her hus band w as employed and su pported her since that time , but he died in 2018. At the time o f his death , a ppellee had be tween $1 2,000 and $14,000 in sa vings, but m o st of that money was used to ward funeral expe nses. All remainin g money was used toward appellee ’ s liv ing expenses. Aft er the oil spill, appellee ’ s home lost significant value. She was forced t o s ell her home a nd only retained $5,000 from th e sale. Appe llee ’ s onl y income since her hus band ’ s death has been loans or a d vances on t he Oil Spill Case. In 201 9, appellee obtain ed two loans totaling $20,0 00 , and she has used this money toward living exp en ses. App ellee has no o ther income and is not y et on disabi lity. Between March and May 2019 , appellee lived i n her car beca u se she had no place to live and no wa y to pay rent. Af ter obtaining her fir st loa n in 2019, she rented an apart ment for $1,300 pe r month. A ppelle e ’ s tota l living

e xpenses are a pproximately $1,886 per month. Appellee testified tha t her curren t loan amou n ts
w ould ru n out in a matter of month s based on her cur rent expenses. Appellee al so presented16

arbitration fees , that she is like ly to be charge d such fe es , or that the AAA will

act ually conduct th e arbitration. See FirstMerit Bank , 52 S.W.3d at 757 ; Aspen Tech., Inc. v. Shasha , 253 S.W.3d 857, 86 4 (Tex. App.

— Houston [1 4th Dist.]
2008 , no p e t.) ; TMI, Inc. v. Brooks , 225 S.W.3d 783, 797 ( Tex. App.

— Houston [1 4 th Dist.] 2007, pet. deni ed)

. Thou gh ap pe llee provide d evidence of the high potential costs of arbitrating
wit h the AAA , these projections ar e based on the premise that the AAA wo uld

a d m inist er the arbitration. However, the ar bitrat ion provi sion in t he Lanie r Agreement does not require that th e AAA conduct or a dminist er the arbitration

. Rather
, the provision states that arbitration shall be “ in accordance with the
C ommercial Arbi trati o n Rules then in effect with the [AAA]. ” S ee Sha sha , 253
S.W.3d at 8 6 4 (arbitration provision required that ar bi tration be con ducted “ in
accordance with the [Commercial Rules]. ” ) ; Brooks , 225 S.W.3d at 797 (arbit ration provision at iss ue required “ ar bitra t i on in accor dance with the
Construction In dustry Arbit rat ion Rules o f the [AAA] promulgated by the [AAA ]. ” )

. We have previously held that “ [u] nder this language, the AAA may
ad minist er the arbitration, but the p arties are not required to ha ve the ar bitra t i on administ ered by the AAA. ” See Shasha
, 253 S .W.3d at 86 4 ; Broo ks
, 225 S.W.3d
at 797.
App ellee argues tha t the Lanier A g reement requires that the arbitration take place wit h the AAA because the arb itration c lause binds the parties to arbitrate

u nder t h e AAA ’s com mercial arbitration rules. Ap pellee then arg ues that th e AAA rules require arbitr ations with the AA A, referenc ing rule R

- 2 : When pa rt ies agree to arbitrate und er th ese rules . . . they thereby author ize the AAA to admini st er the arbitrat ion

. . . . Arbitrations

expert testimony about the likely c o sts of arb itrati ng her c ase with the AAA.17

administ ered under thes e rule s shall o nly be ad mi n istered by the AAA or by an individual or o rganization authorized by the AAA to do so. Appellee argues that rule R

- 2 mandates arbitration with the AAA ( “shall only be
administ ered b y the A AA ”) , and because app ellee has provided u ncontr overted

e vidence o f t he costs associated with arbitrating her ca se with the AAA, she has
shown the likely costs she will incur in arbitr ation. However, this argume nt ignores th e rule ’s p lain language
, w hich a l lows arbitrations to be administered “by
an in dividual o r organiz at i on authorized by the AAA to do s o. ” B eca us e the rule
allows other “authorized ” persons and organizations t o conduct the arbitration, the parti es are not required to arbitrate with the A A A

. Appellee further argues that Brooks i s dis tinguishab le becaus e t here was
evidence that th e party seeking to compel arbitration had arbitrated under the same provision outs ide of the AAA at a much lower cost

. However, i n Shasha , w e held
that “ [a ] ltho u g h the party seeking to compel arbitration in [ Brooks ] pr esented

e vi d enc e that arbitration und er the same arbi tr ation provision was available by a

non

- AAA arbitrator at a cost significantly lower that the costs o f a AAA arbitration, su ch proof is not nece s s ary for Shasha to be required to make a f actua l showing that the AA A wo uld administer the arb itration. ” Shash a , 253 S.W.3d at 864; see also Green Tree , 531 U.S. at 92 ( “ The p ar ty seeking to invalidate an
arbitra tion agreement on the g rou nd that arbi trati o n would be prohibitively expensive bear s t he b ur den of sh owing the l i kelihood of incurri ng suc h costs

. ” ) ; Firs tM erit Bank , 52 S.W. 3d at 75 6 ( “ [N ] o evidence that the AAA would actually
conduct the a rbitration or c harge the specifi ed fee s. The Arbitra tion A d dendum
does not state that the AAA will c ondu ct the arbi tration, an d it ma kes no mention
of a rbitration cost s

. ” (emphasis added)).

Becaus e the arbitration provis ion doe s not mandate arbitration with the18

AA A , appellee has failed to show that th e evid e nced fees ar e likely to be incurred.
See In re FirstMer it Bank
, 52 S.W.3d at 7 56

. 11 There is no evidence o f wh at any

“ individual o r o rganization authorized by the AAA ” to co nduct an arbitration
would cost and w hat appellee ’ s po rtion of such fees wo uld be

. As a result, “ t he

‘ risk ’ that [a claima nt] will be sad dled with p r ohibitive costs is too sp eculative to jus ti fy the inva lidation of an arbitration agreement. ” G reen Tree , 531 U. S. at 91.

We sustain appella nts ’ sole issue on appe al

. III. C ONCLUSION

Becaus e the parties’ arbitration agreement was e nfor ceable
, not supersed ed
, the claims asserted w ere within the s co pe of the provision
, and appellee did not
meet her burden to prove unconscionability
, , we hold that the trial court abused its discretion by denying Appellants’ motio n to compel arbitration

. Accordingly, we

revers e the trial cour t’s order and remand to the trial court for further proceedings
limited to compelling the p arties to submit to arbitration and other actions necessary to conclude the trial

- court proceedings.

/s/ K en Wise Jus tice

Panel cons ists of Jus t ices W ise
, Bourlio t , and Spain

.

11 A ppellee argue s that In re FirstM erit Bank is distinguish able because the arbi t ration clau se at issue therein did no t “ incorporate the AAA commercial rules. ” 52 S.W.3d at 747. This may be s o, however, even u n der the in corpor ated ru l es appellee is not requ ire d to arbit rate with the AAA

.