Kennedy Hodges, L.L.P. v. Ventura Gobellan, Jr. and Paula Gobellan
433 S.W.3d 579
Tex. App.2013Background
- Appellant Kennedy Hodges, L.L.P. seeks to compel arbitration under a contingency fee agreement.
- Appellees Ventura Gobellan, Jr. and Paula Gobellan terminated the attorney-client relationship in 2006.
- Appellant filed a Harris County suit in 2006 against Brown related to the fee contract; appellees were not named.
- Appellant intervened in the Jackson County suit in 2007, asserting breach of contract and seeking 40% of any recovery.
- Settlement in the Harris County suit in 2008 reduced appellant’s asserted fee to 65% of the fee; the court dismissed those claims with prejudice.
- Appellant later sued in Harris County (2011–2012) seeking additional fees and moved to compel arbitration in 2012; the trial court denied the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of arbitration due to substantial invocation of litigation | Hodges sought arbitration; no waiver by prior Harris County litigation | Gobellans argue Hodges waived arbitration by extensive litigation and seeking favorable in court | Waiver established; arbitration denied |
Key Cases Cited
- Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008) (strong presumption against waiver; totality-of-circumstances test)
- Haddock v. Quinn, 287 S.W.3d 158 (Tex. App.—Fort Worth 2009) (waiver found when party seeks arbitration after failed litigation)
- In re Christus Spohn Health Sys. Corp., 231 S.W.3d 475 (Tex. App.—Corpus Christi 2007) (prior litigation constitutes waiver by developing evidence for defense of civil suit)
- Nationwide of Bryan v. Dyer, 969 S.W.2d 518 (Tex. App.—Austin 1998) (substantial invocation shown by extensive discovery or other litigation tactics)
- J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003) (duty to raise affirmative defense; arbitration favored; doubts resolved in favor of arbitration)
- Chambers v. O’Quinn, 305 S.W.3d 141 (Tex. App.—Houston 2009) (invocation of judicial process must pertain to the arbitrable dispute; relevant to waiver analysis)
- Okorafor v. Uncle Sam & Assocs., Inc., 295 S.W.3d 27 (Tex. App.—Houston 2009) (review standard for denial of arbitration and factual deference)