B RIAN D. E SENWEIN , J.D., C.P.A. P ARTNER

– A DMITTED IN T EXAS S TATE B AR N O

. 06665900

besenwein @csa

- lawfirm.com 

# C OTTEN 

# S CHMIDT 

# & 

# A BBOTT

———————— L.L.P.

————————

A TTORNEYS AT L

AW

F ORT W ORTH  C ORPUS C HRISTI H OUSTON  N EW O RLEANS  C ALIFORNIA

Exhibit “A”

- To Appellee’s Motion for Leave to file Letter Brief Page 1 of 7 R EPLY TO : F ORT W ORTH O FFICE
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 236 th Distric t Court, Tarrant County, Texas

Re: C ourt 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 s tatement s
concerning the Re cord 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

argumen t at approx. 37 mins. 32 secs.). Appellant’s C ounsel then back tracked by
stating the Arbitrators may have awarded attorney s ’ 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 , “W e don’t know what contract the Arbitrators found Mr. Walker breached

. ”

(O ral argument at approx. 38 mins. 40 secs.)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 an d Walker , and no
other written agreements with customer non

- solicitat i on covenants were in

evidenc e.

T he Arbitrators awarded d amages 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 A ward 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 ou t why they awarded attorneys’

fees mischaracterizes the R ecord based on both the foregoing paragraph and on the

followin g : (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 prohibit ed solicitation of Miller’ s Ameriprise

c ustomers and awarded permanent injunctive relief on that basis (R R

- Ex.
No. 3 to Transcript, p

. 2
, paragraph 7 , lines 10

- 13 ).

2. Scott Miller testified his damages were caused by Walker’s br e ach of the

2009 AFA Agreement s ( 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
provision s contained in those contracts ( RR

- Ex. No. 8 to Transcript, p. 23).

The above confirm s 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, “W as it the

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

op inion on? That’s not made clear ”
, are inaccurate

. ( O ral argument approx. 39

mins. 05 secs.)

Om ission by Appellant’ s Counsel of Key T erms 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

. ( O ral argument at approx. 10 mins. 40 secs.)
She then qualified her response by stating that the arbitration clause contained in

the AF A Agreement excludes customer non

- so licitation claims brought under

Section VIII of the AFA Agreement

. ( O ral argument at approx. 10 mins. 05 secs.)

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

arbitration under the requi rements for a rbitrat io n between Miller and WalkerExhibit “A”

- To Appellee’s Motion for Leave to file Letter Brief Page 4 of 7

according to the FINRA Code and not the arbitrat i on agreement

. ( O ral 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 occu r red when Ameriprise and Walker each signed a

submissi on agreement that did not violat e the arbitration agreement because

Par agraph 1 of Section IX included that enabling clause ; or

2. Under the AFA Agreement, t he broadly worded arbitration clause would
automatically apply to customer solicitat io n disputes that were voluntarily

submitted to arbitrat i on , and under cited case law th e 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 (10 th 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 agreement s

. ( Oral argument at
approx. 39 mins. 40 secs.)
Appellant’s C ounsel 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 Te nth 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 p arties 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 Holler n from this case , and t he opinion
issued by the Tenth Circuit supports th e Appellee’s position on Appeal, and is in

conflict with the Appellant’s oral argument

.
The Undersigned’s Attorneys’ Fees Affida v it
Through no one’s fault, t ime expired before the undersigned was able to

pr esent his five minutes of allocated time for oral argument to the Court , and t he
following supplemental information is provided to aid the Panel during its

deliberations

.

T he A ttorneys ’ Fees A ffidavit submitted in the arbitration by the
undersigned in the arbitration (RR

- Ex. No. 30 to Transcript) contained several

stat ements regarding the FINRA Arbitrator s ’ general authority to award attorney s ’
fees to Walker payable by Miller

. Appellant’s Counsel argued that the affidavitExhibit “A”

- To Appellee’s Motion for Leave to file Letter Brief Page 6 of 7

supported Appellant’s pos iton 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

w hen 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 Arbitrat or s’ authority to award Walker attorneys’ fees

aga inst Ameriprise was clear ) , and Miller ( who Appellee contended had no
standing to bring any claims or recover any damages or fees u nder 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).

T he undersigned was effectivel y advising the Arbitrators in general and
qualifying terms through his Attorneys’ F ees A ffidavit that if Miller did not have

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

Agreement
, the Arbitrators still had a uthority 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
, Mill er 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 th ose general statements in the undersigned Attorneys’ F ees A ffidavit
were negated and rendered moot, and the A rbitrators were authorized to award
attorneys’ fees to Walker from Miller under the arbitration clause.

Summary
Miller submitted his claims agains t Walker under the arbitration agreement
in the AFA Agreement. T he narrow arbitration clause regardin g the Arbitrators’

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

all else
, and according to Hollern
, the FINRA Uniform Submission Agreement w ill
not be read to violate the p arties’ arbitration agreement

.

Respectfully submitted,

/s/ Brian D. Esenwein

Brian D. Esenwein, J.D.,C.P.A. State Bar No. 06665900 C OTTEN S CHMIDT & A BBOTT , LLP 100 Energy Way, Suite 2000 Fort Worth, Texas 76102 Telephone: 817

- 338

- 4500 Facsimile: 817

- 338

- 4599 besenwein@csa

- lawfirm.com

C OUNSEL FOR A PPELLEE J EREMY J. W ALKER

BDE/cmg

cc: Rick K. Disney (of the firm)