Ferguson Braswell Fraser & Kubasta, P.C. AND Soumit Roy v. SAF Oilfield I, LLC and SAF Capital Partners, LLC ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00171-CV
___________________________
FERGUSON BRASWELL FRASER & KUBASTA, P.C. AND SOUMIT ROY,
Appellants
V.
SAF OILFIELD I, LLC AND SAF CAPITAL PARTNERS, LLC, Appellees
On Appeal from the 271st District Court
Wise County, Texas
Trial Court No. CV21-06-449
Before Sudderth, C.J.; Bassel and Wallach, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
This is an interlocutory appeal from an order denying arbitration in a legal
malpractice case.
Appellee SAF Capital Partners, LLC sought legal representation from
Appellant Soumit Roy while Roy was practicing law with Appellant Ferguson Braswell
Fraser and Kubasta, P.C. (FBFK). SAF Capital, in the course of hiring Roy, signed
FBFK’s Engagement Agreement, which contained an arbitration provision. Soon
thereafter, Roy helped SAF Capital acquire another company—LO Transport—and
Roy formed Appellee SAF Oilfield I, LLC for SAF Capital to use for that purpose.
SAF Capital and SAF Oilfield (together, SAF) now sue FBFK and Roy for
alleged malpractice and breaches of fiduciary duty committed during and soon after
the acquisition transaction. The Engagement Agreement’s arbitration provision is
extremely broad and covers “[a]ny controversy, dispute or claim arising out of, or in
connection with, or in relation to . . . the Engagement of the Firm and legal services
rendered by it or any of its owners or employees.” Because this arbitration provision
covers all of the claims and parties involved in this case, and because neither FBFK
nor Roy waived the right to compel arbitration, we will reverse the trial court’s order.
I. Background
In 2016, Roy was practicing law at FBFK when he was hired to provide legal
services for SAF Capital. Roy emailed SAF Capital a copy of FBFK’s standard
Engagement Agreement to formalize the attorney–client relationship.
2
The Engagement Agreement took the form of a letter, and the letter began:
“We are delighted that you wish to retain [FBFK] (the ‘Firm’) to represent you (the
‘Client’) in connection with your corporate needs.” The Engagement Agreement
went on to define various logistical details of FBFK’s representation, including the
right to compel arbitration:
Any controversy, dispute or claim arising out of, or in connection with,
or in relation to the interpretation, performance or breach of this
Agreement or the Engagement of the Firm and legal services rendered
by it or any of its owners or employees, including but not limited to fee
disputes and legal malpractice, shall be finally determined, at the request
of either party, by arbitration . . . .
After sending SAF Capital the Engagement Agreement, Roy assisted the
company with its purchase of LO Transport from the Oates family. The parties
dispute whether Roy’s work on this acquisition was performed as an FBFK employee
(SAF says yes; FBFK says no) and whether FBFK performed legal work for SAF
outside of the Engagement Agreement (SAF says yes; FBFK says no). Whatever the
case may be, by late 2016, Roy was assisting with the acquisition, 1 and in January 2017,
he registered a new entity—SAF Oilfield—for SAF Capital to use to purchase LO
Transport. SAF Oilfield was created as a wholly owned subsidiary of SAF Capital.
Around the same time that Roy formed SAF Oilfield, he “realized that SAF
Capital had not returned an executed copy of [the Engagement Agreement],” so he
1
SAF’s petition alleged that it hired Roy after it signed a November 2016 letter
of intent to purchase LO Transport, but its brief states that Roy drafted the letter of
intent.
3
sent SAF Capital another copy with nonsubstantive updates.2 SAF Capital’s manager
signed the Engagement Agreement on the company’s behalf and Roy signed on
FBFK’s behalf. 3 Within days, SAF Oilfield and the Oates family signed the LO
Transport purchase agreement.4 And not long thereafter, Roy transitioned into a role
as LO Transport’s director.
Ultimately, LO Transport went bankrupt due to issues that—according to
SAF—Roy should have flagged during his due-diligence research as part of the
acquisition transaction. Additionally, the Oates family sued SAF, Roy, and FBFK for
causes of action related to the acquisition, including breach of contract, fraud, and
civil conspiracy.5
Several minor aspects of the letter were changed (such as the date, FBFK’s
2
name, SAF Capital’s manager’s address, and the fact that the manager signed for SAF
Capital through another entity—1836 Capital, LLC), but neither the arbitration
provision nor the reference to “corporate needs” was altered.
3
The portion of the Engagement Agreement addressing FBFK’s conflict-of-
interest database stated that the firm would “index SAF Capital Partners, LLC as the
Firm’s Client,” and it cautioned SAF Capital “that the Firm only represents the
Client.” The term “Client” was defined as “you.”
4
SAF Capital’s manager returned the Engagement Agreement on February 1,
2017. The purchase agreement was dated February 3, 2017, but SAF’s petition states
that it closed the acquisition on February 15, 2017.
5
See Anders v. Oates, No. 02-19-00116-CV, 2020 WL 1809654, at *1–7 (Tex.
App.—Fort Worth Apr. 9, 2020, no pet.) (mem. op.) (resolving anti-SLAPP appeal in
related litigation).
4
In August 2018, while the Oates litigation was pending, SAF notified FBFK
and Roy of potential malpractice claims related to the acquisition. Over the next two
years, the parties repeatedly attended mediation and entered into a series of ten tolling
agreements.
Then, in June 2021, SAF sued FBFK and Roy for (1) legal malpractice and
(2) Roy’s breaches of fiduciary duty both at FBFK and as LO Transport’s director. In
its petition, SAF alleged that it “engaged Defendants as their legal counsel for matters
concerning the acquisition of LO Transport”; that “[i]n all interactions regarding the
acquisition, Mr. Roy acted as a shareholder/ partner of FBFK”; that Roy failed to
conduct the due-diligence research necessary to ensure that LO Transport was in
acceptable financial condition prior to the acquisition; that Roy failed to update the
provisions of the final purchase agreement; and that after the acquisition, Roy—while
serving as LO Transport’s director “in the course and scope of his employment as
partner with FBFK”—used LO Transport’s finances for improper purposes.
About two months into the lawsuit, FBFK and Roy moved to transfer venue.
The trial court denied the motions in December 2021. A few weeks after the denial,
Roy moved to compel arbitration, and in April 2022, FBFK joined in Roy’s motion.
The trial court denied the arbitration motions without specifying the basis for its
ruling.
5
II. Standard of Review
We review a trial court’s order denying a motion to compel arbitration for an
abuse of discretion, deferring to the trial court’s factual determinations if they are
supported by the record. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009)
(orig. proceeding). But we review de novo the trial court’s legal determinations,
including whether the scope of the agreement encompassed the plaintiff’s claims and
whether a nonsignatory could compel or be compelled to arbitrate. Id.; J.M. Davidson,
Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003); Leland Pennington, Inc. v. Bulls, No. 02-
20-00282-CV, 2021 WL 832690, at *2 (Tex. App.—Fort Worth Mar. 4, 2021, no pet.)
(mem. op.). If a party seeking to compel arbitration establishes the existence of a
valid arbitration agreement that encompasses the parties and claims at issue, the trial
court has no discretion to deny the motion to compel unless the opposing party
proves a defense to arbitration. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753–54
(Tex. 2001) (orig. proceeding); see J.M. Davidson, 128 S.W.3d at 227.
One such defense is waiver. See Perry Homes v. Cull, 258 S.W.3d 580, 589–90
(Tex. 2008). Whether a party’s litigation conduct implicitly waives its right to compel
arbitration is a question of law, which again, we review de novo. In re Serv. Corp. Int’l,
85 S.W.3d 171, 174 (Tex. 2002) (orig. proceeding); In re Bruce Terminix Co., 988 S.W.2d
702, 703–04 (Tex. 1998) (orig. proceeding).
6
When, as here, the trial court does not specify the basis for its order denying
arbitration, we must uphold the trial court’s ruling if it is supported by any legal
ground asserted below. Leland Pennington, 2021 WL 832690, at *5.
III. Discussion
SAF presented the trial court with four legal grounds to fully or partially deny
arbitration: (1) that SAF’s claims did not fall within the scope of the arbitration
provision, (2) that nonsignatory SAF Oilfield was not subject to the arbitration
provision, (3) that nonsignatory Roy was not entitled to enforce the arbitration
provision, and (4) that FBFK and Roy waived their right to compel arbitration.
FBFK and Roy challenge these four legal grounds on appeal, and we agree with them
on all four.
A. SAF’s claims fall within the scope of the arbitration agreement.
First, SAF urged the trial court to deny arbitration because it claimed the
acquisition transaction was outside the scope of the Engagement Agreement and thus
outside the scope of the arbitration provision. According to SAF, the Engagement
Agreement encompassed only SAF’s “corporate needs”—not SAF’s acquisition
transaction. Plus, SAF adds, FBFK cannot claim that the Engagement Agreement’s
arbitration provision encompassed the acquisition because FBFK itself has previously
argued—in this case and in the Oates litigation—that the LO Transport acquisition
was outside the scope of its representation. And Roy has similarly stated that his
work as LO Transport’s director was “outside of FBFK,” thereby admitting that the
7
post-acquisition fiduciary-duty claims fall outside the scope of the Engagement
Agreement as well.
These arguments suffer from three fatal flaws.
1. “Corporate needs” vs. corporate acquisition
First, we disagree with SAF that the language of the Engagement Agreement
necessarily precludes its extension to the acquisition transaction. Even if we assume
that the Engagement Agreement’s reference to “corporate needs” placed a contractual
limitation on the scope of representation covered by the Agreement—despite the
reference coming as part of a seemingly innocuous introductory statement regarding
FBFK’s “delight[]” to be retained—the term “corporate needs” is broad enough to
encompass a corporate acquisition.
We construe contracts “in light of the usual and ordinary meaning of the
contractual language.” United Healthcare of Tex., Inc. v. Low-T Physicians Serv., P.L.L.C.,
No. 02-20-00033-CV, 2021 WL 210846, at *6 (Tex. App.—Fort Worth Jan. 21, 2021,
no pet.) (mem. op.) (quoting IHS Acquisition No. 131, Inc. v. Iturralde, 387 S.W.3d 785,
794 (Tex. App.—El Paso 2012, no pet.)). And the usual and ordinary meaning of the
term “corporate needs” refers to an incorporated entity’s “want of something
requisite, desirable, or useful.” Need, Webster’s Third New International Dictionary
1512 (1961) (listing as an example usage “a building adequate for the company’s
[needs]”); see Corporate, Webster’s Third New International Dictionary 510 (1961)
(defining “corporate” as, among other things, “formed into or forming a body by legal
8
enactment” as in “incorporated”). A limited liability company’s desire to acquire
another entity for a business purpose—or to form a subsidiary to acquire another
entity for a business purpose—qualifies as an incorporated entity’s “want of
something . . . desirable[] or useful.” Need, Webster’s Third New International
Dictionary 1512 (1961). Because the term “corporate needs” is unambiguous, “[a]ny
consideration of unexpressed intent”—such as a statement from FBFK’s corporate
representative regarding what legal services FBFK anticipated providing or told Roy
not to provide—“[i]s unnecessary and in conflict with contract interpretation
principles requiring intent to be determined by an unambiguous contract’s plain
language.”6 Wagner v. Apache Corp., 627 S.W.3d 277, 285 (Tex. 2021).
2. Arbitration provision’s scope vs. Engagement Agreement’s scope
Moreover, the Engagement Agreement’s scope is not determinative. While it is
certainly relevant—after all, we must interpret the arbitration provision in the context
of the contract as a whole, J.M. Davidson, 128 S.W.3d at 229—an arbitration provision
may have a broader scope than its surrounding contract.
6
We do not hold that FBFK subjectively contemplated, authorized, or
performed all legal services that could meet the definition of “corporate needs.” Nor
do we comment on the testimony from FBFK’s corporate representative that, “at
least in [FBFK],” an acquisition “merits its own separate engagement agreement”
because it “is a significant time-consuming and relatively expensive transaction” that
would most likely need “its own separate security deposit.” Rather, we hold that, if
FBFK provided legal services for SAF’s acquisition transaction, the term “corporate
needs” as used in the Engagement Agreement was broad enough to encompass such
acquisition-related legal services, absent a contractual amendment or separate
agreement to the contrary.
9
For example, in In re Rubiola, the Texas Supreme Court held that a broad
arbitration provision executed as part of a mortgage financing process encompassed
claims related to not just the mortgage but also the condition of the home and the
terms of sale. 334 S.W.3d 220, 225–26 (Tex. 2011) (orig. proceeding). There, the
homebuyers sued for alleged misrepresentations made by the listing agent, such as
promising certain repairs and promising to repurchase the home if the repairs were
not satisfactory. Id. Although the listing agent’s real estate company was distinct
from the mortgage company, the individual who had served as the listing agent had
also doubled as the homebuyers’ mortgage broker in the transaction.7 Id. at 222–23.
And as part of the mortgage financing process, the homebuyers executed an
arbitration agreement with the mortgage company. Id. The arbitration provision
encompassed “any and all controversies or claims between the parties of whatever
type or manner, including without limitation, all past, present and/or future credit
facilities and/or agreements involving the parties.” Id. at 222, 226. The provision
further defined “parties” to include more than just the signatories to the financing
agreement—it encompassed the mortgage company’s “individual partners, affiliates,
officers, directors, employees, agents, and/or representatives of any party to such
documents.” Id. at 222–24. Construing this broad arbitration provision, the court
held that it “was not limited to the financing part of the transaction but rather
7
The individual who served as the buyers’ listing agent and lender was also the
vice president of the mortgage company. See Rubiola, 334 S.W.3d at 222.
10
extended to the real estate sales contract and the [homebuyers’] complaints regarding
that sale”—even though the mortgage financing agreement was not necessarily as
broad. Id. at 226.
Here, then, the question is not whether the Engagement Agreement
encompassed Roy’s work on the acquisition but whether the arbitration provision did.
And the arbitration provision was broader than “corporate needs” 8—it encompassed
“[a]ny controversy, dispute or claim arising out of, or in connection with, or in
relation to the interpretation, performance or breach of this Agreement or the
Engagement of the Firm and legal services rendered by it or any of its owners or
employees, including . . . legal malpractice.” “[T]he scope of an arbitration clause that
includes all ‘disputes,’ and not just claims, is very broad and encompasses more than
claims ‘based solely on rights originating exclusively from the contract.’” Henry v. Cash
Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018) (quoting Pinto Tech. Ventures, L.P. v. Sheldon,
526 S.W.3d 428, 439 (Tex. 2017)); see Rebellion Energy II, LLC v. Liberty Res. Powder River
Operating, LLC, No. 01-19-00413-CV, 2019 WL 5699742, at *3 (Tex. App.—Houston
[1st Dist.] Nov. 5, 2019, no pet.) (mem. op.) (“Broad arbitration provisions are
8
SAF argues that the arbitration provision limits itself to FBFK’s
“Engagement” and that “Engagement” is defined in the Engagement Agreement as
“corporate needs.” But as we have already held, “corporate needs” was broad enough
to encompass a corporate acquisition. Plus, the arbitration provision was not limited
to the “Engagement of [FBFK]”—it also encompassed disputes regarding “legal
services rendered by [FBFK] or any of its owners or employees, including . . . legal
malpractice.”
11
generally those that apply to ‘any dispute’ or ‘all disputes’ arising from an
agreement.”). Given the intentionally broad phrasing used in the Engagement
Agreement’s arbitration provision, and given that public policy favors the broad
construction of arbitration provisions, see Henry, 551 S.W.3d at 115–16, we cannot say
“with positive assurance that [the] arbitration clause is not susceptible of an
interpretation” that would extend its scope beyond that of the Engagement
Agreement. Id. at 115 (emphasis omitted) (quoting Prudential Sec. Inc. v. Marshall, 909
S.W.2d 896, 899 (Tex. 1995) (orig. proceeding)); see Prudential Sec. Inc., 909 S.W.2d at
899 (noting that “[t]he policy in favor of enforcing arbitration agreements is so
compelling that 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’” (quoting Neal v. Hardee’s Food Sys., Inc., 918 F.2d 34, 37 (5th
Cir. 1990)); In re Dillard Dep’t Stores, Inc., 186 S.W.3d 514, 516 (Tex. 2006) (orig.
proceeding) (similar).
3. SAF’s pleadings vs. FBFK’s and Roy’s contentions
This brings us to the final flaw in SAF’s arguments related to the scope of the
arbitration provision. SAF argues (1) because FBFK’s corporate representative has
testified via deposition that the acquisition was beyond the contemplated scope of
FBFK’s representation under the Engagement Agreement, FBFK is quasi-estopped
from claiming that the Engagement Agreement’s arbitration provision applies; and
(2) because Roy has testified via deposition that his post-acquisition work as LO
12
Transport’s director was “outside of FBFK,” he cannot claim that the arbitration
provision applies either. As SAF told the trial court, “[t]hey can’t now switch horses
and all of a sudden decide they have a different position.”
But as we have already held, the scope of legal representation contemplated by
FBFK or encompassed by the Engagement Agreement may be different from the
scope of the arbitration provision, so FBFK’s motion to compel arbitration did not
“assert[] . . . a right inconsistent with a position previously taken” as was required for
quasi-estoppel. Clark v. Cotten Schmidt, L.L.P., 327 S.W.3d 765, 770 (Tex. App.—Fort
Worth 2010, no pet.) (stating doctrine of quasi-estoppel). More importantly, whether
a claim falls within an arbitration provision’s scope is not determined by the
defendants’ deposition testimony or pleadings. Rather, to determine whether a party’s
claims fall within an arbitration agreement’s scope, we focus on the plaintiff’s factual
allegations in its petition. See Rubiola, 334 S.W.3d at 225; FirstMerit Bank, 52 S.W.3d at
754.
SAF’s petition alleged that “Plaintiffs [SAF Capital and SAF Oilfield
collectively] engaged Defendants [FBFK and Roy collectively] as their legal counsel
for matters concerning the acquisition of LO Transport”; that “[i]n all interactions
regarding the acquisition, Mr. Roy acted as a shareholder/partner of FBFK”; that
“[a]s [legal] clients, Defendants owed Plaintiffs a duty of care”; and that Roy was later
“employed . . . as a director after the acquisition of LO Transport” and “undertook
this role in the course and scope of his employment as partner with FBFK.” These
13
expressly pleaded premises were repeated in various forms throughout SAF’s petition,
and SAF’s malpractice and fiduciary-duty claims reiterated and relied upon them.9
SAF’s petition thus unambiguously alleged that FBFK’s and Roy’s work during
and soon after the acquisition—the actions which formed the basis for SAF’s
claims—were part of the “legal services rendered by [FBFK] or [Roy, who was one]
9
In its factual background, SAF asserted that
21. . . . Plaintiffs engaged Defendants to complete the transaction
with LO Transport.
22. In all interactions regarding the acquisition, Mr. Roy acted as a
shareholder/partner of FBFK, transacted business using an FBFK e-
mail address, and even held the closing for the acquisition in FBFK’s
office.
[Indentation altered.] SAF reiterated these allegations in pleading its acquisition-
related legal malpractice and breach of fiduciary duty causes of action. For each of
the two claims, it pleaded that “Plaintiffs engaged Defendants as their legal counsel for
matters concerning the acquisition of LO Transport”; that “[b]y virtue of this
relationship, Plaintiffs became Defendants’ clients”; that “[a]s clients, Defendants
owed Plaintiffs a duty of care”; and that, “[b]ecause a law firm is liable for the acts of
its partners/shareholders/agents, FBFK is jointly and severally liable for Mr. Roy’s
breaches to Plaintiffs.” SAF’s third and final claim—alleging post-acquisition breach
of fiduciary duty—similarly alleged that SAF “employed Mr. Roy as a director after
the acquisition of LO Transport”; that “Mr. Roy undertook this role in the course and
scope of his employment as partner with FBFK”; and that “[i]n his role of director,
Mr. Roy owed [but breached] a fiduciary duty to Plaintiffs.”
SAF’s petition also listed a fourth claim in which it sought attorney’s fees under
Chapter 38 of the Texas Civil Practice and Remedies Code, but a request for
attorney’s fees under Chapter 38 is not a stand-alone cause of action. See In re Nalle
Plastics Fam. Ltd. P’ship, 406 S.W.3d 168, 172–73 (Tex. 2013) (orig. proceeding) (noting
that Chapter 38 allows for the recovery of attorney’s fees but the “party must first
prevail on the underlying claim and recover damages” (emphasis omitted)).
14
of its owners or employees.” 10 FBFK’s defensive contention that it did not represent
SAF in the acquisition transaction cannot remove the dispute from the scope of the
arbitration provision any more than can FBFK’s defensive contention that it did not
commit legal malpractice at all.
Because SAF’s claims qualified as “controvers[ies], dispute[s] or claims[s]
arising out of, or in connection with, or in relation to the . . . legal services rendered
by [FBFK] or any of its owners or employees,” SAF’s claims for malpractice and
breach of fiduciary duty were within the scope of the arbitration provision, and the
trial court’s order denying arbitration cannot be upheld on this basis.
B. SAF Oilfield is subject to the arbitration provision.
SAF also argues, as it did before the trial court, that SAF Oilfield cannot be
compelled to arbitrate because it was not a signatory to the Engagement Agreement.
Although “[t]he involvement of a non-signatory is an important distinction because a
party cannot be forced to arbitrate absent a binding agreement to do so,” Jody James
Farms, JV v. Altman Grp., Inc., 547 S.W.3d 624, 632 (Tex. 2018), Texas courts have
recognized “six scenarios in which arbitration with nonsignatories may be required:
incorporation by reference, assumption, agency, alter ego, equitable estoppel, and
10
Although SAF argued in the trial court that, for SAF’s post-acquisition
fiduciary duty claim, Roy’s work “was outside the scope of his work at FBFK,” SAF’s
petition alleged the opposite—that Roy was “employed . . . as a director after the
acquisition of LO Transport” and “undertook this role in the course and scope of his
employment as partner with FBFK.”
15
third-party beneficiary.” Apache Corp. v. Wagner, 621 S.W.3d 285, 296 (Tex. App.—
Fort Worth 2018) (mem. op.), aff’d, 627 S.W.3d 277 (Tex. 2021); see Jody James Farms,
547 S.W.3d at 633.
“[A] litigant who sues based on a contract subjects him or herself to the
contract’s terms.” FirstMerit Bank, 52 S.W.3d at 755. A nonsignatory’s suit is “based
on a contract” if the nonsignatory “seeks, through the claim, to derive a direct benefit
from the contract containing the arbitration provisions.” In re Weekley Homes, L.P.,
180 S.W.3d 127, 131 (Tex. 2005) (orig. proceeding) (quoting In re Kellogg Brown & Root,
Inc., 166 S.W.3d 732, 741 (Tex. 2005) (orig. proceeding)). “But a nonparty may seek
or obtain direct benefits from a contract by means other than a lawsuit” as well. Id. at
132. “[W]hen a nonparty consistently and knowingly insists that others treat it as a
party, it cannot later ‘turn[ ] its back on the portions of the contract, such as an
arbitration clause, that it finds distasteful.’” Id. at 135 (quoting E.I. DuPont de Nemours
& Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 F.3d 187, 200 (3d Cir.
2001)).
In Weekley Homes, for example, the Texas Supreme Court held that a
homebuyer’s adult daughter could not escape an arbitration clause in the home
purchase agreement when the daughter asserted rights and accepted benefits under
that agreement. Id. at 133–34. The daughter had negotiated the home’s construction,
she had demanded repairs from the construction company, and she had received
reimbursement after her family was forced to move out to make way for the repairs.
16
Id. at 129, 133. When the daughter later sued the construction company for personal
injuries arising from the allegedly negligent manner in which the repairs had been
completed, the Texas Supreme Court held that the daughter could be compelled to
arbitrate. Id. at 129, 132–34. Even though she was a nonsignatory to the purchase
agreement, she “purport[ed] to make no claim on the Weekley contract,” and her
claims could have been brought by a bystander based on Weekley’s independent
duties under Texas law, the court still found that direct-benefits estoppel applied
because the daughter had “deliberately sought substantial and direct benefits from the
contract, and Weekley [had] agreed to comply.” Id. at 132–34.
Our sister court later applied this same doctrine to a malpractice case in
Greenberg Traurig, LLP v. Nat’l Am. Ins. Co. 448 S.W.3d 115, 117–23 (Tex. App.—
Houston [14th Dist.] 2014, no pet.). There, the nonsignatory was an insured, and the
insurer hired an attorney at Greenberg Traurig to represent the insured in an appeal,
but the attorney did not file a timely notice of appeal. Id. at 117–18. When the
insured sued the attorney and Greenberg Traurig for malpractice, Greenberg Traurig
moved to compel arbitration under an arbitration provision in the retainer
agreement—a retainer agreement signed by the insurer but not by the insured. 11 Id. at
11
The arbitration provision in Greenberg Traurig’s retainer agreement expressly
stated that the insurer “would be ‘speaking for both [itself] and for [the insured]’ in
the joint representation agreement,” and that “[b]y executing this engagement
agreement without striking through the arbitration clause above, [the insurer] further
warrants and represents . . . [that it] is authorized to execute and bind [the insured] to
the arbitration provision above in accordance with any insurance agreements
17
118. The insured argued that it could not be compelled to arbitrate because it was not
a signatory to the retainer agreement. Id. at 118, 121. The Fourteenth District Court
of Appeals rejected this argument, though, based on the doctrine of direct-benefits
estoppel. Id. at 121–22. Because the insured “insist[ed] that Greenberg violated
various duties owed to [the insured] as a client,” and because its claims—negligence,
malpractice, and breach of fiduciary duty—were all “based on Greenberg’s legal
representation of [the insured], which ar[o]se[] out of the agreement,” the court held
that the insured could not “avoid the arbitration provision in the agreement providing
for [the insured’s] legal representation.” Id.The present situation bears many similarities to the circumstances in Greenberg
Traurig. Here, as there, a nonsignatory client—SAF Oilfield—sued a law firm and an
attorney—FBFK and Roy—for alleged violations of attorney–client duties that arose
out of SAF Capital’s contractual engagement of FBFK. Of course, SAF disputes that
the sued-upon duties arose out of the Engagement Agreement, arguing that “nothing
prohibit[ed] FBFK from representing SAF Oilfield [separate from SAF Capital and]
without a written engagement agreement.” Although this is true as a hypothetical
possibility, SAF Oilfield failed to plead—much less offer any evidence—that such a
governing the [insurer–insured] business relationship.” Greenberg Traurig, 448 S.W.3d
at 118.
18
separate, unwritten agreement existed.12 On the contrary, SAF Oilfield pleaded its
claims jointly with SAF Capital, making no distinction between SAF Capital’s
contractual engagement of FBFK and SAF Oilfield’s engagement of FBFK.
SAF’s petition began by declaring two collective terms for itself—referring to
both SAF Capital and SAF Oilfield as “SAF” or “Plaintiffs”—then it used these
collective terms to plead its claims and supporting factual allegations:
• “Plaintiffs [collectively] engaged Defendants to complete the transaction
with LO Transport.”
• “Plaintiffs [collectively] assert Count One [for legal malpractice] against
FBFK and Roy.”
12
SAF hinted at the existence of a separate, unwritten agreement in unsworn
motions before the trial court, but the only evidence on the issue came in through
FBFK’s and Roy’s affidavits, in which they indicated that the Engagement Agreement
covered all of the legal work that Roy performed for SAF Capital and SAF Oilfield on
FBFK’s behalf. See In re Poly-Am., L.P., 262 S.W.3d 337, 354 (Tex. 2008) (orig.
proceeding) (holding that, because affidavits were not controverted, the court of
appeals could properly credit those facts on appeal); Jack B. Anglin Co., Inc. v. Tipps,
842 S.W.2d 266, 269 (Tex. 1992) (orig. proceeding) (stating that a “trial court may
summarily decide whether to compel arbitration on the basis of affidavits, pleadings,
discovery, and stipulations” unless “the material facts necessary to determine the issue
are controverted, by an opposing affidavit or otherwise admissible evidence,” in
which case “the trial court must conduct an evidentiary hearing”); Hawk Steel Indus.,
Inc. v. Stafford, No. 02-19-00040-CV, 2019 WL 3819506, at *2 (Tex. App.—Fort
Worth Aug. 15, 2019, pet. denied) (mem. op.) (analogizing arbitration proceeding to
summary judgment, noting that “[t]he same evidentiary standards apply, and the party
alleging that an arbitration agreement exists must present summary proof that the
dispute is subject to arbitration (through affidavits, pleadings, discovery, or
stipulations), and the party resisting arbitration may contest the opponent’s proof or
present evidence supporting the elements of a defense to enforcement”). SAF did not
offer any “opposing affidavit[s] or otherwise admissible evidence” to controvert
FBFK’s and Roy’s affidavits. See Jack B. Anglin Co., 842 S.W.2d at 269.
19
• “Plaintiffs [collectively] assert Count Two [for acquisition-related breach of
fiduciary duty] against FBFK and Roy.”
• “Plaintiffs [collectively] engaged Defendants as their legal counsel for
matters concerning the acquisition of LO Transport.”
• “By virtue of this relationship, Plaintiffs [collectively] became
Defendants’ clients.”
• “Defendants owed Plaintiffs [collectively] a duty of care.”
• “Defendants breached their duty of care to Plaintiffs [collectively] . . . .”
• “Plaintiffs [collectively] assert Count Three [for post-acquisition breach
of fiduciary duty] against Defendants.”
• “Plaintiffs [collectively] employed Mr. Roy as a director . . . .”
• “Mr. Roy owed a fiduciary duty to Plaintiffs [collectively].”
In short, SAF’s “original petition ma[d]e[] no distinction between the
[signatories’] claims and the [nonsignatories’] claims.” FirstMerit Bank, 52 S.W.3d at
755–56. The Texas Supreme Court has held that a nonsignatory to an installment
contract was subject to the contract’s arbitration provision when the nonsignatory
joined the signatories in suing for alleged violations of the installment contract and the
“original petition ma[d]e[] no distinction between the [signatories’] claims and the
[nonsignatories’] claims.” Id. Here, SAF merged its signatory claims with its
nonsignatory claims, and it sought to recover for attorney–client duties that were
established by the Engagement Agreement and covered by that Agreement’s
arbitration provision. Therefore, SAF Oilfield is subject to the arbitration provision
20
in the Engagement Agreement, and the trial court’s order denying arbitration cannot
be upheld on this basis.
C. Roy can enforce the arbitration provision.
SAF also argues that Roy cannot enforce the arbitration provision because Roy
was not a party to the Engagement Agreement—he signed it as FBFK’s agent but he
did not sign for himself in his individual capacity. But Roy is being sued for his
actions as an alleged agent of a signatory,13 and the Engagement Agreement expressly
contemplated its application to claims against FBFK’s “owners or employees.”
1. Enforcement as a signatory’s agent
“[T]he agents of a signatory may sometimes invoke an arbitration clause even if
they themselves are nonsignatories.” In re Kaplan Higher Educ. Corp., 235 S.W.3d 206,
209 (Tex. 2007) (orig. proceeding); see Meyer v. WMCO-GP, LLC, 211 S.W.3d 302, 305
(Tex. 2006) (noting that “sometimes a person who is not a party to the agreement can
compel arbitration with one who is, and vice versa”). When an agreement provides
that the substance of a dispute will be arbitrated, a signatory cannot avoid arbitration
by suing the agent of the other. See Kaplan, 235 S.W.3d at 209–10.
13
SAF contends that Roy failed to preserve his agency argument, but this is not
so. After Roy filed his motion to compel arbitration, SAF responded that he could
not compel arbitration as a nonsignatory, and Roy replied by arguing that “[a]
contracting party generally cannot avoid unfavorable clauses by suing the other party’s
agents,” so “Roy, as a shareholder and/or an employee of FBFK [wa]s entitled to
compel Plaintiffs to arbitration under an agency theory.
21
In In re Kaplan Higher Educ. Corp., for example, 45 students each signed an
agreement with their vocational college agreeing to arbitrate disputes “arising from or
relating to” the students’ enrollment agreement. Id. at 208. The students, alleging that
they had been fraudulently induced to enroll, sued the college, the college’s parent
corporation, the college’s president, and the college’s admissions director. Id. When
the defendants moved for arbitration under the enrollment agreement, the students
nonsuited their claims against the two signatories—the college and the college
president—while retaining their claims against the nonsignatories. Id. The Texas
Supreme Court nonetheless held that the nonsignatories were entitled to compel
arbitration under the enrollment agreement. Id. at 208–10.
The court explained that just as “a contracting party generally cannot avoid
unfavorable clauses by suing the other party’s agents,” so “if two companies sign a
contract to arbitrate disputes, one cannot avoid it by recasting a contract dispute as
a . . . claim against an owner, officer, agent, or affiliate of the other.” Id. at 209
(internal citations omitted). Indeed, “almost every contract claim against a
corporation could be recast as a . . . claim against the agents or employees who took
part in the negotiations preceding it,” and “it is impractical to require every corporate
agent to sign or be listed in every contract.” Id. Plus, under the Texas Education
Code, the signatory college faced potential liability if the students were successful in
their claims against the college’s nonsignatory agents, and “[i]f the College’s liability
22
for [providing] refunds . . . c[ould] be decided in court by suing its agents, then the
arbitration contract [would be] effectively abrogated.” Id. at 209–10.
The same is true in legal malpractice cases such as the one at hand. Almost any
dispute with a law firm over alleged malpractice could be recast as a suit against one
or more individual attorneys at the firm. And often, as here, the defendant law firm is
threatened with liability based on the alleged malpractice of its employee. SAF cannot
avoid arbitration by suing FBFK’s nonsignatory agent—Roy—for “claim[s] arising
out of . . . legal services [allegedly] rendered by” Roy on FBFK’s behalf. Roy can
therefore compel arbitration as FBFK’s agent.
2. Enforcement as contemplated by the Engagement Agreement
Aside from being FBFK’s agent, there is another reason why Roy can compel
arbitration: because the Engagement Agreement expressly contemplated it.
“[S]ignatories to an arbitration agreement may identify other parties in their
agreement who may enforce arbitration as though they signed the agreement
themselves.” Rubiola, 334 S.W.3d at 226 (holding that nonsignatories could compel
arbitration where mortgage financing agreement contained broad arbitration clause
and defined “parties” to include certain nonsignatories). When SAF assented to the
Engagement Agreement, it agreed that it could be compelled to arbitrate certain
disputes regarding “legal services rendered by [FBFK] or any of its owners or employees”
and it agreed that “th[e] [arbitration] provision eliminate[d] [its] right to a jury or other
trial in any and all disputes against the Firm or its owners or employees.” [Emphasis
23
added.] The Engagement Agreement thus contemplated arbitration in a suit against
an FBFK owner or employee even if FBFK was not a party to the litigation. Such
language extended the right to compel arbitration to these expressly contemplated
nonsignatories. Cf Lucchese Boot Co. v. Rodriguez, 473 S.W.3d 373, 384 (Tex. App.—El
Paso 2015, no pet.) (holding that, because the scope of the arbitration agreement
expressly included claims “against the Company or its officers, directors, shareholders,
employees, or agents in their personal or official capacities,” the company’s
nonsignatory employees had the right to seek arbitration as third-party beneficiaries).
SAF argues, however, that the arbitration provision stated that it could be
invoked “at the request of either party” which, according to SAF, limited its
invocation to “part[ies]” to the Engagement Agreement. But the term “party” was
not defined in the Engagement Agreement, and reading that Agreement as a whole
reveals that the term “party” was used in multiple senses. See J.M. Davidson, 128
S.W.3d at 229 (reiterating that courts must “consider the entire writing” and that “all
the provisions must be considered with reference to the whole instrument”).
The Engagement Agreement used the term “party” to refer, for example, to a
“party with an interest that may be adverse” to SAF’s interests, to a “prevailing party”
in arbitration, and to the “parties hereto” the Engagement Agreement. The last
term—“parties hereto”—was the Engagement Agreement’s preferred phrase when
limiting its reach to the signatories. The arbitration provision itself demonstrated this
distinction between “party” and “parties hereto”:
24
Any [covered] controversy, dispute or claim . . . shall be finally
determined, at the request of either party, by arbitration . . . . The arbitrator
shall award the prevailing party, in addition to the costs of the proceeding,
that party’s reasonable attorneys’ fees. The parties hereto shall be bound by
this provision and the results of any such arbitration. The parties hereto
have the right to consult independent counsel about this . . . Agreement.
The parties hereto acknowledge and agree that . . . this provision eliminates
their right to a jury or other trial in any and all disputes against the Firm
or its owners or employees.
[Emphasis added.] Given the multiple senses in which the term “party” was used in
the Engagement Agreement, the context of the term “at the request of either party”
clarifies its reference to the parties to the “controversy, dispute, or claim”—not the
“parties hereto” the Engagement Agreement. Plus, in construing the arbitration
provision, we must “give effect to all the provisions of the contract so that none will
be rendered meaningless,” id., and SAF’s interpretation of this provision—limiting the
right to compel arbitration to signatories—would render meaningless the references
to FBFK’s “owners or employees.”
In sum, Roy can compel arbitration under the Engagement Agreement’s
arbitration provision—not only because he was an agent of a signatory who allegedly
acted on that signatory’s behalf in the arbitrable matters but also because the plain
language of the arbitration provision contemplated invocation by a nonsignatory
“owner or employee.” The trial court’s order denying arbitration cannot be upheld on
this basis.
25
D. Neither FBFK nor Roy waived the right to arbitrate.
Finally, SAF contends—as it did before the trial court—that FBFK and Roy
implicitly waived the right to arbitrate. Cf. Legoland Discovery Ctr. (Dall.), LLC v.
Superior Builders, LLC, 531 S.W.3d 218, 222 (Tex. App.—Fort Worth 2017, no pet.)
(“Waiver of a valid and applicable arbitration agreement may be express or implied.”).
To prove waiver, SAF points to (1) the three-year delay between when SAF put
FBFK and Roy on notice of its claims and the motion to compel arbitration, (2) the
parties’ numerous pre-suit tolling agreements, (3) the parties’ attempted mediations,
(4) FBFK’s and Roy’s participation in discovery, and (5) FBFK’s and Roy’s motions
to transfer venue. 14 None of these actions “substantially invok[ed] the judicial
process.” See Perry Homes, 258 S.W.3d at 589–90.
A party implicitly waives its right to compel arbitration if it “substantially
invok[es] the judicial process” through “conduct inconsistent with a claimed right to
compel arbitration.” Id.; Legoland, 531 S.W.3d at 222; see G.T. Leach Builders, LLC v.
Sapphire V.P., LP, 458 S.W.3d 502, 511–12 (Tex. 2015). Whether a party’s litigation
14
SAF also argues that FBFK and Roy waived the right to compel arbitration by
participating in “protracted litigation” with the Oates family. But SAF does not allege
that it was adverse to FBFK in the Oates litigation, nor does it allege that the
Engagement Agreement bound the Oates family to arbitrate its disputes with FBFK
or Roy. SAF has not otherwise explained how FBFK’s or Roy’s conduct in the Oates
lawsuit allegedly waived the right to compel arbitration in this lawsuit. Cf. Haddock v.
Quinn, 287 S.W.3d 158, 178–80 (Tex. App.—Fort Worth 2009, pet. denied) (holding
conduct in prior lawsuit waived right to arbitration where “both [the] prior suit and
[the] arbitration demand assert[ed] the same conduct” as a factual basis).
26
conduct qualifies as “substantial” is a legal question and is determined on a case-by-
case basis from the totality of the circumstances. Perry Homes, 258 S.W.3d at 590–91
598; cf. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 713 (Tex. 2016) (orig.
proceeding). “[K]ey factors include the reason for delay in moving to enforce
arbitration, the amount of discovery conducted by the movant, and whether the
movant sought disposition on the merits.” Richmont Holdings, Inc. v. Superior Recharge
Sys., L.L.C., 455 S.W.3d 573, 575 (Tex. 2014).
The party opposing arbitration bears the burden to prove a substantial
invocation of the judicial process, and because the law strongly favors arbitration,
“this hurdle is a high one.” Perry Homes, 258 S.W.3d at 589–90; Legoland, 531 S.W.3d
at 222. It is so high that “appellate courts seldom find an implied waiver through
litigation conduct,” Legoland, 531 S.W.3d at 222, and the Texas Supreme Court has
declined to find waiver even when the party seeking arbitration has, among other
things, filed suit, moved to dismiss for lack of standing, moved to set aside a default
judgment, removed the case to federal court, moved to strike an intervention,
opposed discovery, requested an initial round of discovery, noticed and taken as many
as four depositions, opposed a trial setting, and agreed to a trial resetting. Perry Homes,
258 S.W.3d at 590 (listing circumstances in which the court held that arbitration had
not been waived).
Although SAF identifies numerous actions that it claims substantially invoked
the judicial process, it contends that we need only consider one: FBFK’s and Roy’s
27
delay. SAF argues that this three-year delay, standing alone, is sufficient to
demonstrate waiver. To support its position, SAF notes that FBFK and Roy received
notice of SAF’s claims three years before they moved to compel arbitration, and it
highlights a footnote in Perry Homes in which the Texas Supreme Court cited a First
Circuit case holding that a three-year delay constituted waiver. See id. at 591 n.58. But
a federal First Circuit case cited as an example in a footnote—even a Texas Supreme
Court footnote—does not make that federal case binding on this court. And the
Texas Supreme Court has reiterated both before and after Perry Homes that “mere
delay in moving to compel arbitration is not [generally] enough for waiver.” Richmont
Holdings, 455 S.W.3d at 576; see In re Vesta Ins. Grp., 192 S.W.3d 759, 763 (Tex. 2006)
(orig. proceeding) (similar); cf. Nationwide Ins. Co. of Am., 494 S.W.3d at 714 (stating
similarly while applying waiver standard to forum-selection clause).
Moreover, FBFK and Roy did not delay for three years. SAF measures the
delay from the time FBFK and Roy received pre-suit notice of SAF’s claims, but our
sister courts have held that a defendant is not generally 15 required to make a pre-suit
demand for arbitration given that arbitration “may establish its own liability [and], if
that party remains inactive, a claim may never be formally pressed in either arbitration
or a court proceeding.” USX Corp. v. West, 759 S.W.2d 764, 768 (Tex. App.—
Houston [1st Dist.] 1988, no writ) (noting that “no law . . . requires a party to make a
This is not to say that there are never instances in which pre-suit conduct may
15
be inconsistent with the right to arbitrate.
28
pre-suit demand for arbitration that may establish its own liability”); see Neatherlin
Homes, Inc. v. Love, No. 13-06-328-CV, 2007 WL 700996, at *9 (Tex. App.—Corpus
Christi–Edinburg Mar. 8, 2007, no pet.) (mem. op.) (rejecting argument that
defendant waived right to compel arbitration and stating that “[defendant] was under
no obligation to assert its right to arbitration before [plaintiff] filed suit”); Nationwide of
Bryan, Inc. v. Dyer, 969 S.W.2d 518, 521 (Tex. App.—Austin 1998, no pet.) (similar); cf.
Enviro Petroleum, Inc. v. Kondur Petroleum, S.A., 91 F. Supp. 2d 1031, 1033 (S.D. Tex.
2000) (order) (finding no waiver and noting that “the most rational course of action
for the non-complaining party to take when initially confronted by a dissatisfied
claimant is to do nothing and hope that the complaining party is simply ‘blowing off
steam’ and will never actually initiate a lawsuit or commence arbitration
proceedings”).
Putting aside the pre-suit period of the delay, after SAF filed its lawsuit, the
defendants moved to compel arbitration within ten months—Roy moved to compel
arbitration in approximately six months, and FBFK joined in the motion a little more
than three months later. Texas courts have rejected waiver arguments in cases with
far longer delays. See Richmont Holdings, 455 S.W.3d at 575–76 (holding that 19-month
delay was alone insufficient to establish waiver); Vesta Ins. Grp., 192 S.W.3d at 763
(holding that “litigating for two years in the trial court” was alone insufficient to
establish waiver).
29
Plus, FBFK’s and Roy’s pre-suit conduct was not inconsistent with the right to
compel arbitration. See G.T. Leach Builders, 458 S.W.3d at 511–12 (noting that, to
substantially invoke the judicial process, a party must engage in “conduct inconsistent
with a claimed right to compel arbitration”); Legoland, 531 S.W.3d at 222 (similar); cf.
Growtech Partners v. Accenture LLP, 118 F. Supp. 3d 920, 937–39 (S.D. Tex. 2015)
(acknowledging that “the Fifth Circuit has not found waiver based solely on presuit
communications or conduct,” but discussing cases in which the Fifth Circuit “has
found waiver based in part on pre[-]suit conduct inconsistent with the right to
arbitrate”). SAF relies upon FBFK’s and Roy’s execution of ten pre-suit tolling
agreements and their attendance at pre-suit mediation, but such conduct was not
inconsistent with a right to compel arbitration. Tolling agreements—much like
scheduling orders—do not waive the right to arbitrate. Cf. Legoland, 531 S.W.3d at
223 (holding that agreeing to a scheduling order did not waive right to compel
arbitration). Nor does attending mediation or attempting a settlement. See id. (noting
that “[a]ttempts at settlement . . . are not inconsistent with an inclination to arbitrate
and do not preclude the exercise of a right to arbitration” (quoting Walker v. J.C.
Bradford & Co., 938 F.2d 575, 578 (5th Cir. 1991)); Tex. Residential Mortg., L.P. v.
Portman, 152 S.W.3d 861, 863–64 (Tex. App.—Dallas 2005, no pet.) (recognizing that
“a party’s attempt at settlement or mediation does not invoke the judicial process so
as to waive a claim of arbitration” and that “[s]uch attempts are not inconsistent with
a desire to arbitrate”); Nationwide of Bryan, 969 S.W.2d at 521 (rejecting argument that
30
pre-litigation negotiations waived right to arbitrate and noting that “[p]re-litigation
efforts to negotiate can never be viewed as delay; to hold otherwise would undermine
any efforts to resolve a dispute short of trial”).
The actions that FBFK and Roy took after SAF filed suit—responding to
discovery16 and moving to transfer venue—were arguably closer to waiver, as they
reflected participation in the ongoing judicial process. But even then, the participation
was neither substantial nor inconsistent with the right to compel arbitration.
“Responding to discovery . . . do[es] not amount to waiver.” G.T. Leach Builders, 458
S.W.3d at 514 (holding that the defendant had not waived arbitration by responding
to discovery and noting that the court “ha[s] declined to find waiver even when the
movant itself propounded written discovery”); FW Servs. Inc. v. McDonald, No. 04-19-
00331-CV, 2020 WL 444400, at *3 (Tex. App.—San Antonio Jan. 29, 2020, no pet.)
(mem. op.) (similar, quoting G.T. Leach Builders). And the Texas Supreme Court has
repeatedly “rejected arguments relying on venue challenges to establish waiver [of
16
SAF argues that FBFK and Roy engaged in “pre- and post-suit discovery,”
but it only provided the trial court with copies of FBFK’s and Roy’s responses to
discovery requests—it did not offer any copies of discovery allegedly propounded by
FBFK or Roy. FBFK represents that it “sought no discovery in this case,” and Roy
states that he requested only SAF’s disclosures. Propounding requests for disclosure
is insufficient to demonstrate waiver. See G.T. Leach Builders, 458 S.W.3d at 514 (citing
cases in which the court “declined to find waiver of the right to arbitrate . . . where
the movant made a request for disclosure”); Legoland, 531 S.W.3d at 222 (holding
defendant had not waived right to compel arbitration when it “sought only routine
disclosures under [R]ule 194 from [plaintiff], which [plaintiff] also requested from
[defendant]”).
31
arbitration] because such challenges do not relate to the merits of the case.” G.T.
Leach Builders, 458 S.W.3d at 513–14 (holding that motion to transfer venue did not
waive arbitration, citing multiple other cases in which the court held similarly, and
concluding that the defendant’s other procedural actions—including moving to
designate responsible third parties, moving for a continuance, and moving to quash
depositions—had not waived its right to arbitrate either). FBFK’s and Roy’s
“[m]erely taking part in litigation is not enough” without the substantial invocation of
the judicial process. Vesta Ins. Grp., 192 S.W.3d at 763.
Thus, SAF has not carried its burden to demonstrate that FBFK or Roy
substantially invoked the judicial process, 17 and the trial court’s order denying
arbitration cannot be upheld on the basis of waiver.
17
Because we hold that FBFK and Roy did not substantially invoke the judicial
process, we need not address the parties’ arguments regarding the prejudice
requirement and Morgan v. Sundance, Inc., 142 S. Ct. 1708 (2022). See Tex. R. App. P.
47.1; Legoland, 531 S.W.3d at 223 (similarly declining to address prejudice).
32
IV. Conclusion
Because the trial court’s order denying arbitration cannot be upheld on any of
the four legal grounds asserted below, we reverse the order and remand the case for
further proceedings consistent with this opinion. See Tex. R. App. P. 43.2(d); G.T.
Leach Builders, 458 S.W.3d at 532 (similarly remanding).
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: January 26, 2023
33