In re Godt

• Decision Date: 24 August 2000
• Docket Number: No. 13-00-388-CV,13-00-388-CV
• Citation: 28 S.W.3d 732
• Parties: (Tex.App.-Corpus Christi 2000) IN RE: PAMELA GODT
• Court: Texas Court of Appeals

Page 732

28 S.W.3d 732 (Tex.App.-Corpus Christi 2000)

IN RE: PAMELA GODT

No. 13-00-388-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS, CORPUS CHRISTI

August 24, 2000

Rehearing Overruled November 2, 2000.

On Petition for Writ of Mandamus

[Copyrighted Material Omitted]

Before Justices Dorsey, Hinojosa, and Yanez.

OPINION

Opinion by Justice Yanez.

In this original proceeding, relator, Pamela Godt,¹ seeks mandamus relief from an order compelling arbitration under the Texas General Arbitration Act (the TAA)² of her legal malpractice action against real party-in-interest, attorney Thomas J. Henry (Henry). Pursuant to this Court's request, Henry filed a response. See Tex. R. App. P. 52.8(b)(1). Without hearing oral argument, we conditionally grant the writ. See Tex. R. App. P. 52.8(c).

On October 23, 1997, Godt telephoned Henry's Corpus Christi office to discuss retaining him to represent her in a medical malpractice case arising out of severe medical problems following hip surgery. Henry told Godt that although he was unable to see her, he would send a paralegal to her home in Rockport. Godt was unable to travel to Henry's office because she was suffering from severe pain associated with the surgery, and was being treated with pain medication. A paralegal from Henry's office, Patricia Hoyt, went to Godt's home with a Power of Attorney and Contingent Fee Contract (the agreement) for Godt's signature. Hoyt was not instructed to explain any of the contractual provisions to Godt, and did not do so. Hoyt testified by deposition that she visited with Godt for about forty-five minutes; Godt appeared to be in extreme pain and did not ask any questions. Except for Godt's husband and children, no one else was present. Hoyt stated she briefly discussed Godt's medical history with her and may have briefly discussed attorney's fees; there was no discussion, however, of any provisions contained in the agreement. Godt signed the agreement.

According to Godt, she spoke with an attorney in Henry's office in February or March 1999, and was told that everything was fine. Godt alleges Henry failed to investigate or pursue her medical malpractice claim and failed to return her phone calls inquiring about her case. Shortly before limitations expired, Henry attempted to refer the case to two other attorneys. Godt contends that by that time, there was insufficient time to adequately investigate or prepare the case, and both attorneys rejected the case. With only a couple of months left before limitations expired, Henry withdrew from the representation. When Godt complained she was unable to obtain another lawyer under the circumstances, Henry prepared a pro se petition.³

Godt filed suit against Henry, alleging his mishandling of her medical malpractice claim constituted negligence, gross negligence, fraud, misrepresentation, breach of fiduciary duty, and violations of the Deceptive Trade Practices-Consumer Protection Act (DTPA).⁴ Henry answered, and filed a motion to compel arbitration based on a mandatory arbitration clause contained in the agreement. Following a hearing on April 18, 2000, the trial court granted, on May 4, 2000, Henry's motion to compel arbitration and stayed the lawsuit pending resolution by binding arbitration.

Godt requested findings of fact and conclusions of law from the trial court. Henry submitted proposed findings of fact and conclusions of law. Godt objected to Henry's proposed findings and conclusions, but the trial court signed the findings and conclusions, without modification, on June 7, 2000.

The trial court's findings of fact included the following: (1) the arbitration agreement conforms with the TAA and "applicable legal authority;" (2) there was no evidence the arbitration agreement was procured by fraud, duress, or in an unconscionable manner; (3) Godt's claims arise out of her attorney/client relationship with Henry; and (4) there is no evidence that section 171.002(a)(3) of the civil practice and remedies code⁵ is applicable to the agreement. The trial court also made the following conclusions of law: (1) the arbitration agreement is valid and enforceable under the TAA; (2) Godt's claims are within the scope of the agreement; (3) no applicable defense (such as fraud, duress, unconscionability, or waiver) exists to defeat the enforceability of the agreement; and (4) section 171.002(a)(3) of the civil practice and remedies code is inapplicable to the agreement.

Godt contends the agreement is unenforceable because her legal malpractice claim is "a claim for personal injury," and falls, therefore, within one of several types of claims excepted from the scope of the TAA by section 171.002. She argues that because she did not sign the agreement to arbitrate "on the advice of counsel," and because the agreement was neither signed by Henry nor counsel for either party, it fails to satisfy the "exception to the exception" criteria outlined in section 171.002(c). See Tex. Civ. Prac. & Rem. Code Ann. 171.002(c) (Vernon Supp. 2000). Whether the agreement is governed by the TAA depends, therefore, on whether a legal malpractice claim is "a claim for personal injury" within the meaning of section 171.002(c). Godt also contends the agreement is unenforceable on public policy grounds. She argues that because of attorneys' special role in the legal system, attorney-client contracts are subject to heightened scrutiny and that the public interest in protecting clients from attorneys' overreaching and unfair treatment is ill-served by allowing mandatory arbitration provisions in attorney-client contracts.

Henry contends this Court is without jurisdiction to review an order compelling arbitration because under the TAA, no review (including mandamus) is available from an interlocutory order compelling arbitration. He argues Godt has an adequate remedy by appeal because an order compelling arbitration may be appealed upon completion of arbitration and entry of judgment by the trial court. In addition, Henry argues he is entitled to arbitration under the TAA because: 1) an arbitration agreement exists; 2) the claims are within the scope of the agreement; 3) Texas policy favors arbitration; 4) Godt failed to present evidence of unconscionability, fraud, or duress in the formation of the agreement; and 5) a claim for legal malpractice is not a claim for personal injury, which would operate to exclude Godt's claim from the TAA's applicability.

We must first determine whether mandamus is the appropriate relief for Godt. In making this determination, we note that Henry's jurisdictional challenge addresses only review of an order compelling arbitration under the TAA. Moreover, the trial court's findings of fact and conclusions of law refer only to the TAA; no findings of fact or conclusions of law were requested concerning applicability of the Federal Arbitration Act (FAA), and the trial court made no such findings or conclusions.

The arbitration agreement itself is internally inconsistent as to whether state or federal arbitration law governs disputes between the parties. Provision 10 of the agreement provides that the "Agreement shall be construed under and in accordance with the laws of the State of Texas, . . . and regarding anything covered by this Agreement shall be governed by the laws of the State of Texas." The agreement also contains a statement located above the signature line, in all capital letters, that "THIS CONTRACT IS SUBJECT TO ARBITRATION UNDER THE TEXAS GENERAL ARBITRATION STATUTE." However, Provision 11 of the agreement, specifically entitled, "Arbitration," states that all disputes "shall be resolved by binding arbitration pursuant to the Federal Arbitration Act in accordance with the Commercial Arbitration Rules then in effect with the American Arbitration Association. . . . This arbitration provision shall be enforceable . . . pursuant to the substantive federal law established by the Federal Arbitration Act." (emphasis added).

In reviewing an identical provision in an identical contract (same attorney, same contract, same complaint, and most distressingly, a virtually identical fact pattern with a different client), the San Antonio Court of Appeals, in Henry v. Gonzalez, 18 S.W.3d 684 (Tex. App.--San Antonio 2000, pet. filed), concluded that the reference to the FAA was a "drafting error" and that the dispute in that case was governed by the TAA, not the FAA. See id. at 688. Although Gonzalez was before the San Antonio Court in a different procedural posture than the instant case (in Gonzalez, appellants Henry and Hearn filed an interlocutory appeal of an order denying their motion to compel arbitration), and we decline to embrace the conclusions reached by the San Antonio Court, we nonetheless agree with the Gonzalez court's conclusion that the FAA is inapplicable because the contract does not relate to interstate commerce. Id.

We disagree, however, with the Gonzalez court's conclusion that notwithstanding the conflicting provisions, the TAA governs a contract such as the one before us in this case. Id. In construing a contract, a court's primary concern is to ascertain the true intention of the parties as expressed in the instrument. Hofland v. Fireman's Fund Ins. Co., 907 S.W.2d 597, 599 (Tex. App.--Corpus Christi 1995, no writ) (citations omitted). In ascertaining the true intention of the parties, the courts will examine and consider the entire writing, seeking as best they can, to harmonize and to give effect to all the provisions of the contract so that none will be rendered meaningless. Id. In interpreting a contract, the ultimate restraint is that a court cannot, through the construction process, make a new contract for the parties, one they did not make. Borders v. KRLB Inc., 727 S.W.2d 357, 359 (Tex. App.--Amarillo 1987, writ ref'd n.r.e). We conclude that in the instant case, the conflicting provisions of the agreement cannot be reconciled and the intention of the...