IN THE 

FOURTH COURT OF APPEALS

AT SAN ANTONIO

CAUSE NO. 04-14-00889-CV

ENDURA ADVISORY GROUP, LTD.,

APPELLANT

VS.

DOMINIC ALTOMARE,

APPELLEE 

INTERLOCUTORY APPEAL FROM CAUSE NO. 2014-CI-11780

IN THE 131ST JUDICIAL DISTRICT COURT, BEXAR COUNTY, TEXAS

MOTION HEARD BY JUDGE MARTHA TANNER, VISITING JUDGE, 

SITTING IN THE 57TH JUDICIAL DISTRICT COURT

APPELLANT, ENDURA ADVISORY GROUP, LTD.’S, REPLY BRIEF 

RICHIE & GUERINGER, P.C.

GAY GUERINGER

State Bar No. 08571400

DOUG K. CLEMONS

State Bar No. 24032083

112 East Pecan Street, Suite 1420

San Antonio, Texas 78205

Tel: 210-220-1080 / Fax: 210-220-1088 

Email: ggueringer@rg-sanantonio.com

Email: dclemons@rg-sanantonio.com 

ATTORNEYS FOR APPELLANT, 

ENDURA ADVISORY GROUP, LTD.

APPELLANT REQUESTS ORAL ARGUMENT

ACCEPTED

04-14-00889-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

3/9/2015 3:38:26 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 03/9/2015 3:38:26 PM KEITH E. HOTTLE Clerk
TABLE OF CONTENTS

TABLE OF CONTENTS........................................................................................... i

INDEX OF AUTHORITIES..................................................................................... ii

REPLY.......................................................................................................................1

PRAYER....................................................................................................................8

CERTIFICATE OF COMPLIANCE.........................................................................9

CERTIFICATE OF SERVICE ..................................................................................9

i
INDEX OF AUTHORITIES

Cases

Gutierrez v. Deloitte & Touche, 100 S.W.3d 261, 271 (Tex. App. – San Antonio 

2002, no pet.)..........................................................................................................2

Houston Exploration Co. v. Wellington Underwriting Agencies, Ltd., 352 

S.W.3d 462, 469 (Tex. 2011).................................................................................6

In re B.P. Am. Prod. Co., 97 S.W.3d 366, 370 (Tex. App. – Houston [14th Dist.] 

2003, orig. proceeding).......................................................................................5, 7

Neely v. Intercity Mgmt. Corp., 732 S.W.2d 644, 646 (Tex. App. – Corpus 

Christi 1987, no writ) .............................................................................................4

Sendjar v. Gonzales, 520 S.W.2d 478, 481 (Tex. Civ. App. – San Antonio 1975, 

no writ) ...............................................................................................................4, 5

ii
CAUSE NO. 04-14-00889-CV

ENDURA ADVISORY GROUP, LTD.,

APPELLANT

VS.

DOMINIC ALTOMARE,

APPELLEE

INTERLOCUTORY APPEAL FROM CAUSE NO. 2014-CI-11780

IN THE 131ST JUDICIAL DISTRICT COURT, BEXAR COUNTY, TEXAS

MOTION HEARD BY JUDGE MARTHA TANNER, VISITING JUDGE, 

SITTING IN THE 57TH JUDICIAL DISTRICT COURT

APPELLANT, ENDURA ADVISORY GROUP, LTD.’S, REPLY BRIEF

TO THE HONORABLE FOURTH COURT OF APPEALS:

COMES NOW Appellant, ENDURA ADVISORY GROUP, LTD., and files its 

Reply Brief, and in support thereof would show the Court the following:

REPLY

1. Appellee has failed to overcome the mountain of evidence that Josh 

Reneau (“Reneau”) is Endura Advisory Group, Ltd.’s (“Endura”) agent and 

representative. James G. Lundblad (“Lundblad”), a principal of Endura, testified 

unequivocally Reneau is an agent and representative of Endura. (Nov. R.R. Pg. 13, 

line 14-18). Lundblad also testified that Reneau has business cards with Endura’s 

name on them and when Reneau is out in the field leasing and selling properties for 

Appellant’s Reply Brief 1
Endura, he represents himself to the public as working for Endura. (Nov. R.R. Pg. 

13, line 19-21). Reneau also has the authority to enter into transactions on behalf of 

Endura and actively markets on behalf of Endura. (Nov. R.R. Pg. 19, line 16-25). 

Further evidencing agency and control, Lundblad testified to the following points: 

(a) Reneau does not work for anyone other than Endura; (b) Reneau is required to 

come to the office; (c) Reneau is required to attend sales meetings; (d) Reneau is 

authorized by Endura to market and attempt to acquire listings and properties to 

sell and lease for and on behalf of Endura; (e) Endura instructs Reneau on how to 

manage and practice business for Endura and work within the confines of what 

Endura expects from an Associate, and (f) Endura assigns Reneau tasks as it relates 

to selling and leasing properties for Endura. (Nov. R.R. Pg. 15, line 22 through Pg. 

line 22; Nov. R.R. Pg. 22, line 4-7; Nov. R.R. Pg. 20, line 1-11). In viewing the 

facts and circumstances as a whole, the relationship between Endura and Reneau is 

obviously one of principal and agent. See Gutierrez v. Deloitte & Touche, 100 

S.W.3d 261, 271 (Tex. App. – San Antonio 2002, no pet.)(An agency relationship 

may be found from underlying facts or direct circumstantial evidence showing the 

relationship of the parties).

2. Appellee mischaracterizes the Listing Agreement. The Listing 

Agreement clearly establishes Reneau as an agent and representative of Endura. 

See previously filed Appendix, Confidential Exhibit 5, Listing Agreement. In an ill 

Appellant’s Reply Brief 2
fated attempt to show this Court that Reneau is an independent contractor instead 

of an agent or representative of Endura, Appellee, Nick Altmore (“Altomare”)

cites the Court to the Listing Agreement admitted into evidence at the November 7, 

2014 hearing. See Appendix, Confidential Exhibit 5, Listing Agreement; see also

Appellee Brief at Pg. 15. Altomare points out that Section 4.3 of the Listing 

Agreement states that the Broker is acting as an independent contractor and not the 

Owner’s agent; however, this section refers to the relationship between Endura (as 

the Broker) and the Owner (as the property owner, Star 7 Properties, LLC, 

Endura’s client). See Appendix, Confidential Exhibit 5, Listing Agreement, 

Section 4.3. This section has absolutely nothing to do with the relationship 

between Reneau and Endura and therefore Altomare’s argument has no merit. 

3. What is telling however, is that the same Listing Agreement, under 

Section 4.1 states:

4.1 Key Agents. If there are any Key Agents designated in 

Paragraph 1.8, then Broker [Endura] shall assign those Key 

Agents [Reneau] to be primarily responsible for performing 

the duties of Broker hereunder during the entire term.

(Appendix, Confidential Exhibit 5, Listing Agreement, Pg. 3, Section 4.1. 

(Emphasis added)

As per Section 4.1 of the Listing Agreement Endura unequivocally assigned

Reneau, as Key Agent for Endura under the Listing Agreement, the responsibility 

of performing the duties of Endura when dealing with property owner or client. 

Appellant’s Reply Brief 3
This clearly demonstrates that Endura, by naming Reneau as Key Agent, has the 

right to and does exercise control over Reneau, and delegates the responsibility to 

Reneau to perform Endura’s duties; not an open invitation to do whatever he 

wants. In fact, Section 4.1 of the Listing Agreement directs Reneau to act on 

behalf of Endura when dealing with the property owner. See Neely v. Intercity 

Mgmt. Corp., 732 S.W.2d 644, 646 (Tex. App. – Corpus Christi 1987, no writ)(An 

“agent” is one who is authorized by a person or entity to transact business or 

manage some affair for the person or entity); Sendjar v. Gonzales, 520 S.W.2d 

478, 481 (Tex. Civ. App. – San Antonio 1975, no writ)(An essential element of the 

principal-agency relationship is the principal’s right to control the actions of the 

alleged agent). The Listing Agreement is proof positive that Endura has the right 

to control the actions of Reneau and Reneau is authorized by Endura to transact 

business and manage Endura’s affairs as it relates to the selling or leasing of 

properties, making Reneau an agent and representative of Endura.

4. A thorough review of Reneau’s Associate Compensation Agreement

further reveals that it controls Reneau by and through specific requirements for 

Reneau to receive additional compensation on clients and/or deals he works on for

Endura, further evidencing control by Endura over the means and details of 

Reneau’s work. Id. at page JR000011-JR000012, Article II and Article III of the 

Associate Compensation Agreement. Specifically, Article II and Article III of the 

Appellant’s Reply Brief 4
Associate Compensation Agreement sets forth specific criteria Reneau must satisfy 

in order to receive additional compensation or referral commissions. Id. For 

instance, in order for Reneau to receive an additional referral fee under Article III, 

one of the criteria that must be met by Reneau is “an ability to demonstrate 

continuing involvement and communication with client.” Thus, the criteria set 

forth in Article II and Article III of the Associate Compensation Agreement 

undeniably evidences Endura’s established criteria its Associates must meet to 

achieve additional fees. See Sendjar v. Gonzales, 520 S.W.2d at 481. So, while

Endura may not choose to micromanage every aspect of how an Associate gets 

there (although it could do so), it absolutely imposes controls through criteria and 

requirements necessary for financial advancement.

5. The claims brought by Altomare against Reneau undoubtedly arise 

from the Separation Agreement. To be subject to arbitration, the “allegations need 

only be factually intertwined with arbitrable claims or otherwise touch upon the 

subject matter of the agreement containing the arbitration provision. In re B.P. 

Am. Prod. Co., 97 S.W.3d 366, 370 (Tex. App. – Houston [14th Dist.] 2003, orig. 

proceeding). Altomare has asserted claims against Reneau for breach of contract 

based on an unwritten “agreement” to split “certain” undefined, unquantified 

Appellant’s Reply Brief 5
commissions on real estate transactions the two worked on together.1

 Even 

assuming this “agreement” to split “certain” commissions once existed through a 

course of dealing, Altomare released these claims when he executed the Separation 

Agreement with Endura because Altomare did not include these transactions on the 

List. Further, by and through the qualification of “certain” commissions, Altomare 

raises the ambiguity of this undefined “agreement” entitling Endura’s principal, 

Lundblad, to explain the reasons behind the breadth of terms used in the Separation 

Agreement. (Nov. R.R. Pg. 17, line 14-25). An explanation of the intent of the 

parties which does not contradict the document is exactly what the parol evidence 

rule is there for. Houston Exploration Co. v. Wellington Underwriting Agencies, 

Ltd., 352 S.W.3d 462, 469 (Tex. 2011)(The parol evidence rule does not prohibit 

consideration of surrounding circumstances that inform, rather than vary from or 

contradict, the contract text). Further, Altomare failed to object to Lundblad’s 

testimony and he waived any right to now complain about it. 

6. By asserting claims for breach of contract against Reneau, Altomare is 

effectively asserting these claims against Endura because Reneau is Endura’s agent 

and representative and was released by the execution of the Separation Agreement. 

Furthermore, the claims brought by Endura against Altomare are for breach of the 

Separation Agreement and are undisputedly covered by the arbitration agreement 

1

 We know of only four (4) so far, but Altomare has not limited his right to continue to claim 

future commissions on the same “agreement.”

Appellant’s Reply Brief 6

 
contained within the Separation Agreement. (C.R. Pg. 9-17). Accordingly, 

Altomare’s claims against Reneau and Endura’s claims against Altomare arise 

from and touch upon the very subject matter of the Separation Agreement and 

therefore triggers the Dispute Resolution Policy incorporated into the Separation 

Agreement. See Id. at 370.

7. For the reasons stated in Endura’s Brief and herein, Altomare has 

failed to overcome the overwhelming evidence that Reneau’s work selling and 

leasing properties and securing listing agreements for Endura is all performed as an 

agent or representative of Endura and only Endura. As stated by the Texas 

Supreme Court in the In re D. Wilson Constr. Co case, “a court should not deny 

arbitration unless it can be said with positive assurance that an arbitration clause is 

not susceptible of an interpretation which would cover the dispute at issue”. In re 

D. Wilson Const. Co., 196 S.W.3d 774, 783 (Tex. 2006). With this liberal 

construction in mind, it is clear from the evidence presented to the trial court that 

Reneau is an agent or representative of Endura and the disputes are covered by the 

Separation Agreement, thus triggering the arbitration agreement. Therefore, the 

trial court erred in denying Endura’s Motion to Compel Alternative Dispute 

Resolution Process and Motion to Abate Proceeding Pending Completion of the 

Alternative Dispute Resolution Process and denial of same on Motion for 

Reconsideration.

Appellant’s Reply Brief 7
PRAYER

This Court should reverse the trial court’s denial of Endura Advisory Group, 

Ltd.’s Motion to Compel Alternative Dispute Resolution Process and Motion to 

Abate Proceeding Pending Completion of the Alternative Dispute Resolution 

Process and denial of same on Motion for Reconsideration and remand this case 

back to the trial court to compel arbitration and for such other and further relief, 

whether at law or in equity, to which Endura Advisory Group, Ltd, may be justly 

entitled.

Respectfully submitted,

RICHIE & GUERINGER, P.C.

BY: /s/ Gay Gueringer

GAY GUERINGER

State Bar No. 08571400

DOUG K. CLEMONS

State Bar No. 24032083

112 East Pecan Street, Suite 1420

San Antonio, Texas 78205

Telephone: 210-220-1080 

Facsimile: 210-220-1088 

Email: ggueringer@rg-sanantonio.com

Email: dclemons@rg-sanantonio.com

ATTORNEYS FOR INTERVENOR,

ENDURA ADVISORY GROUP, LTD.

Appellant’s Reply Brief 8
CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that 

this reply brief contains 1,605 words, excluding the words not included in the word 

count pursuant to Texas Rule of Appellate Procedure 9.4(i)(1). This is a computergenerated document created in Microsoft Word, using 14-point typeface for all 

text, except for footnotes which are in 12-point typeface. In making this certificate 

of compliance, I am relying on the word count provided by the software used to 

prepare the document. 

/s/ Gay Gueringer

Gay Gueringer/Doug K. Clemons

CERTIFICATE OF SERVICE

This is to certify that on the 9th day of March 2015, a true and correct copy 

of the foregoing has been served on opposing counsel as follows:

Via Electronic Service and Facsimile

Eric A. Pullen

Pulman, Cappuccio, Pullen, Benson & Jones, LLP

2161 NW Military Highway, Suite 400

San Antonio, Texas 78213

/s/ Gay Gueringer

Gay Gueringer/Doug K. Clemons

Appellant’s Reply Brief 9