BRIAN D. ESENWEIN, J.D., C.P.A.

PARTNER – ADMITTED IN TEXAS

STATE BAR NO. 06665900

 besenwein@csa-lawfirm.com

 

COTTEN SCHMIDT & ABBOTT

 ———————— L.L.P. ————————

ATTORNEYS AT LAW

FORT WORTH  CORPUS CHRISTI

HOUSTON  NEW ORLEANS  CALIFORNIA

Exhibit “A” - To Appellee’s Motion for Leave to file Letter Brief Page 1 of 7

REPLY TO:

FORT WORTH OFFICE

100 Energy Way, Ste. 2000

Fort Worth, Texas 76102

Telephone (817) 338-4500

Facsimile (817) 338-4599

December 6, 2017

Via E-Filing

Debra Spisak, Clerk

Court of Appeals, Second District of Texas at Fort Worth

On Appeal from the 236th District Court, Tarrant County, Texas

Re: Court of Appeals Case Number: 02-17-00035-CV, Scott A. Miller, 

Appellant v. Jeremy J. Walker, d/b/a Maverick Wealth Management,

Appellee - Letter Brief

During oral argument, Appellant’s Counsel made several statements

concerning the Record which Appellee believes are inaccurate. Appellant’s 

Counsel also misapplied a key opinion to the facts of this case.

Appellant’s Counsel accurately acknowledged during her rebuttal argument 

that the Arbitrators had found that Walker breached the AFA Agreement (oral 

argument at approx. 37 mins. 32 secs.). Appellant’s Counsel then back tracked by 

stating the Arbitrators may have awarded attorneys’ fees to Miller on the basis of 

the breach by Walker of one or more oral contracts. She also made a general 

reference to other written agreements, said this was not a reasoned award, and 

stated, “We don’t know what contract the Arbitrators found Mr. Walker breached.” 

(Oral argument at approx. 38 mins. 40 secs.)

 FILED IN 2nd COURT OF APPEALS FORT WORTH, TEXAS 12/6/2017 4:18:34 PM DEBRA SPISAK Clerk
Exhibit “A” - To Appellee’s Motion for Leave to file Letter Brief Page 2 of 7

Inaccurate Statements Concerning the Record

There is no evidence in the Record to support Appellant’s Counsel’s

statements regarding alleged oral agreements between Miller and Walker, and no

other written agreements with customer non-solicitation covenants were in 

evidence.

The Arbitrators awarded damages and attorneys’ fees to Miller due to the 

breach of written agreements Walker made with Ameriprise according to the 

Award and not for breach of any oral agreement or other written agreements (CR -

Vol. 1, p. 31). The only written agreement Walker made with Ameriprise that 

contained the type of covenants referred to by the Arbitrators in the Award was the 

2009 AFA Agreement. 

The statement made by Appellant’s Counsel to this Court that it was not 

possible to read the Arbitrators’ minds and figure out why they awarded attorneys’ 

fees mischaracterizes the Record based on both the foregoing paragraph and on the 

following: (Oral argument at approx. 39 mins. 08 secs.)

1. Appellant’s Counsel stated under penalty of perjury that, the Panel found 

that the 2009 AFA Agreement prohibited solicitation of Miller’s Ameriprise 

customers and awarded permanent injunctive relief on that basis (RR - Ex.

No. 3 to Transcript, p. 2, paragraph 7, lines 10-13).

2. Scott Miller testified his damages were caused by Walker’s breach of the 

2009 AFA Agreements (CR - Vol. II, p. 547, p. 185, lines 9-12).
Exhibit “A” - To Appellee’s Motion for Leave to file Letter Brief Page 3 of 7

3. The only breach of contract cause of action set forth in the Appellant’s 

Amended Statement of Claim stated that Walker breached his contracts with 

Ameriprise by failing to comply with the confidentiality and non-solicit 

provisions contained in those contracts (RR - Ex. No. 8 to Transcript, p. 23).

The above confirms that according to the Record the 2009 AFA Agreement 

was the sole contractual justification for an award of attorneys’ fees to Miller 

pursuant to Section 38.001 of the Texas Civil Practice and Remedies Code.

Accordingly, the comments to the Court by Appellant’s Counsel that, “Was it the 

breach of the 2009 AFA Agreement specifically that they were resting their 

opinion on? That’s not made clear”, are inaccurate. (Oral argument approx. 39

mins. 05 secs.)

Omission by Appellant’s Counsel of Key Terms of the AFA Agreement

Appellant’s Counsel was asked, “is arbitration under FINRA necessarily

exclusive of incorporating the arbitration agreement?” Ms. Blair responded that she 

did not believe they are exclusive. (Oral argument at approx. 10 mins. 40 secs.)

She then qualified her response by stating that the arbitration clause contained in 

the AFA Agreement excludes customer non-solicitation claims brought under 

Section VIII of the AFA Agreement. (Oral argument at approx. 10 mins. 05 secs.)

Appellant’s Counsel further stated that those claims were therefore submitted to 

arbitration under the requirements for arbitration between Miller and Walker 
Exhibit “A” - To Appellee’s Motion for Leave to file Letter Brief Page 4 of 7

according to the FINRA Code and not the arbitration agreement. (Oral argument at 

approx. 11 mins. 40 secs.)

Appellant’s Counsel did not mention that:

1. The sentence in the arbitration agreement containing that limitation started 

with the phrase, “Unless otherwise agreed to in writing by both parties, ...” 

which is what occurred when Ameriprise and Walker each signed a 

submission agreement that did not violate the arbitration agreement because 

Paragraph 1 of Section IX included that enabling clause; or 

2. Under the AFA Agreement, the broadly worded arbitration clause would 

automatically apply to customer solicitation disputes that were voluntarily 

submitted to arbitration, and under cited case law the FINRA Code would 

have been superseded by the parties’ agreement.

Mischaracterization by Appellant’s Counsel of the Application of Case Law to 

this Appeal

Appellant’s Counsel misrepresented the law of the case in Hollern v. 

Wachovia Securities, Inc., 458 F.3d 1169 (10th Cir. 2006). Ms. Blair stated that the 

Tenth Circuit held that in the context of FINRA the Uniform FINRA Submission 

Agreement controls over prior written arbitration agreements. (Oral argument at 

approx. 39 mins. 40 secs.)

Appellant’s Counsel did not bring to this Court’s attention that in Hollern

the parties’ original arbitration agreement was silent on the issue of attorneys’ fees. 
Exhibit “A” - To Appellee’s Motion for Leave to file Letter Brief Page 5 of 7

(Id at 1774) Moreover, the Court in Hollern cited another Tenth Circuit opinion 

that stated:

“The parties may extend that authority, however in their submission to the 

arbitrators so long as the submissions do not violate the express provisions 

of the original arbitration agreement.” Id at 1174

Hollern holds that the Arbitrators’ authority can be expanded by the parties under a 

written submission agreement when the arbitration language is silent on a 

particular matter.

The specific language in the arbitration agreement in the AFA Agreement 

regarding attorneys’ fees distinguishes Hollern from this case, and the opinion 

issued by the Tenth Circuit supports the Appellee’s position on Appeal, and is in 

conflict with the Appellant’s oral argument.

The Undersigned’s Attorneys’ Fees Affidavit

Through no one’s fault, time expired before the undersigned was able to 

present his five minutes of allocated time for oral argument to the Court, and the 

following supplemental information is provided to aid the Panel during its 

deliberations.

The Attorneys’ Fees Affidavit submitted in the arbitration by the 

undersigned in the arbitration (RR - Ex. No. 30 to Transcript) contained several 

statements regarding the FINRA Arbitrators’ general authority to award attorneys’

fees to Walker payable by Miller. Appellant’s Counsel argued that the affidavit 
Exhibit “A” - To Appellee’s Motion for Leave to file Letter Brief Page 6 of 7

supported Appellant’s positon on Appeal, and Mr. Disney was asked by one of the 

Justices why Walker was entitled to seek attorneys’ fees from Miller under the 

arbitration agreement. (Oral argument approx. 31 mins. 24 secs.)

The undersigned could have further responded to the Court by stating that 

when the affidavit was prepared at the end of the arbitration hearing on damages,

Walker was seeking attorneys’ fees from both Ameriprise (as a signatory to the 

AFA under which the Arbitrators’ authority to award Walker attorneys’ fees 

against Ameriprise was clear), and Miller (who Appellee contended had no 

standing to bring any claims or recover any damages or fees under the AFA 

Agreement) (CR - Vol. I, p. 168). Walker was also asking the Arbitrators to 

reconsider its ruling on permanent injunction and conclude that Miller was not 

covered by the AFA Agreement (CR - Vol. I, p. 172).

The undersigned was effectively advising the Arbitrators in general and 

qualifying terms through his Attorneys’ Fees Affidavit that if Miller did not have 

standing and was not allowed to assert any claims against Walker under the AFA

Agreement, the Arbitrators still had authority to award Walker his attorneys’ fees 

against Miller under various alternative theories. The undersigned acknowledges 

the affidavit did not draw a distinction between Ameriprise and Miller as to such 

general FINRA rules, but none was required.

When the Panel awarded Miller compensatory damages under the AFA

Agreement in the final Award, Miller was also subject to the narrow attorneys’ 
Exhibit “A” - To Appellee’s Motion for Leave to file Letter Brief Page 7 of 7

fees language in the arbitration agreement, (just like Ameriprise and Walker were),

whereupon those general statements in the undersigned Attorneys’ Fees Affidavit 

were negated and rendered moot, and the Arbitrators were authorized to award 

attorneys’ fees to Walker from Miller under the arbitration clause.

Summary

Miller submitted his claims against Walker under the arbitration agreement 

in the AFA Agreement. The narrow arbitration clause regarding the Arbitrators’ 

authority to award attorneys’ fees applies to Miller and that language controls over 

all else, and according to Hollern, the FINRA Uniform Submission Agreement will 

not be read to violate the parties’ arbitration agreement.

Respectfully submitted,

/s/ Brian D. Esenwein

Brian D. Esenwein, J.D.,C.P.A.

State Bar No. 06665900

COTTEN SCHMIDT & ABBOTT, LLP

100 Energy Way, Suite 2000

Fort Worth, Texas 76102

Telephone: 817-338-4500

Facsimile: 817-338-4599

besenwein@csa-lawfirm.com

COUNSEL FOR APPELLEE 

JEREMY J. WALKER

BDE/cmg

cc: Rick K. Disney (of the firm)