Kreit v. Brewer & Pritchard, P.C.
530 S.W.3d 231
Tex. App.2017Background
- Camil and Samir Kreit are physicians associated with Cleveland Imaging and Surgical Hospital (CISH); Brewer & Pritchard performed corporate/general legal services in July–August 2014 and billed Camil and Samir.
- Brewer & Pritchard drafted multiple fee agreements; the July 31, 2014 agreement (bearing signatures) named Camil and Samir and contained an AAA documents-only arbitration clause.
- Camil and Samir contend they intended representation only for CISH, deny signing an agreement in their individual capacities, and allege the July 31 agreement was a composite "Frankenstein" document.
- Brewer & Pritchard initiated arbitration against Camil and Samir; the arbitrator found both signed the July 31 agreement in their individual capacities and awarded fees to Brewer & Pritchard.
- Brewer & Pritchard moved to confirm the award in district court; Camil timely moved to vacate but Samir’s attempt to file a vacatur motion was deemed untimely (mailbox rule not shown to apply).
- The trial court confirmed the arbitration award; this appeal followed, challenging confirmation and denial of vacatur.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Samir’s post-award filing was timely under TAA §171.088 and the mailbox rule | Samir: mailed motion within 90 days; mailbox rule deems timely | Brewer & Pritchard: clerk did not receive within 10-day Rule 5 window; no proof of timely receipt | Held: Samir’s filing untimely; mailbox rule not proved, so vacatur motion barred |
| Whether no arbitration agreement existed as to Camil (so award invalid) | Camil: did not sign individually; arbitration clause not binding on him | Brewer & Pritchard: agreement bound them; Camil failed to prove he preserved objection in arbitration | Held: Camil failed to show he raised the objection in arbitration as required by TAA §171.088(a)(4); vacatur denied |
| Whether arbitrator exceeded powers by deciding arbitrability (grounds for vacatur under §171.088(a)(3)(A)) | Camil: arbitrator improperly ruled when no agreement existed; thus exceeded powers | Brewer & Pritchard: challenge is really that no agreement exists—properly analyzed under §171.088(a)(4) | Held: Court treats claim under §171.088(a)(4); cannot relabel a no-agreement challenge as "exceeded powers" to evade statutory requirements |
| Whether appeal was frivolous warranting Rule 45 damages | Brewer & Pritchard: appeal objectively frivolous | Camil/Samir: appeal had arguable grounds | Held: No frivolous-appeal finding; damages denied |
Key Cases Cited
- Hoskins v. Hoskins, 497 S.W.3d 490 (Tex. 2016) (TAA permits vacatur only on statutory grounds)
- D.R. Horton-Tex., Ltd. v. Bernhard, 423 S.W.3d 532 (Tex. App.—Houston [14th Dist.] 2014) (standard of review for confirmation/vacatur)
- Southwinds Express Constr., LLC v. D.H. Griffin of Tex., Inc., 513 S.W.3d 66 (Tex. App.—Houston [14th Dist.] 2016) (discusses arbitration deference and objections to arbitrability)
- CVN Grp., Inv. v. Delgado, 95 S.W.3d 234 (Tex. 2002) (deference and presumptions favoring arbitration awards)
- Stokes v. Aberdeen Ins. Co., 917 S.W.2d 267 (Tex. 1996) (mailbox rule requires clerk receipt within ten days)
- Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266 (Tex. 1992) (procedure for motions to compel arbitration; not controlling for post-award vacatur)
- G & H Towing Co. v. Magee, 347 S.W.3d 293 (Tex. 2011) (harmless-error standard on appeal)