Alabaster, Inc. and John Sheffield v. Brent W. Coon, Brent W. Coon, P.C. D/B/A Brent Coon & Associates and Eric Newell

majority opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

NO. 09-24-00314-CV

ALABASTER, INC. AND JOHN SHEFFIELD, Appellants

BRENT W. COON AND BRENT W. COON, P.C.

D/B/A BRENT COON & ASSOCIATES, AND ERIC NEWELL, Appellees

On Appeal from the 172nd District Court

Jefferson County, Texas

Trial Cause No. E-199,958

OPINION

Appellants Alabaster, Inc. and John Sheffield (collectively, “Plaintiffs,”

“Appellants” or “Alabaster”) sued Brent W. Coon, Brent W. Coon, P.C. d/b/a Brent

Coon & Associates, and Eric Newell (collectively, “Defendants,” “Appellees” or

“BCA”) for legal malpractice. Appellants challenge the trial court’s: (1) Order

denying Plaintiffs’ Motion to Reconsider Order Compelling Arbitration signed

January 26, 2020; and (2) Order Granting Defendants’ Motion to Dismiss for Want

of Prosecution, signed on April 6, 2023. 1 Appellants raise three issues challenging

the trial court’s orders. In issues one and two, Appellants complain of the trial court’s

denial of their Motion to Reconsider Order Compelling Arbitration, and in issue

three, they complain about the trial court’s Order Granting Defendants’ Motion to

Dismiss for Want of Prosecution. As discussed below, we affirm en banc the trial

court’s judgment.

I. BACKGROUND

Sheffield is the current owner of Alabaster, Inc. Sheffield’s father, Charles

Arthur Sheffield, founded Alabaster and was the previous CEO. 2 Alabaster

“manufactures bioremediation cleaning products and custom microbial cleaners

designed for various environmental needs, including oil spill cleanups.”

In April 2010, one of BP’s offshore wells located in the Gulf of Mexico, the

Deepwater Horizon, blew out, resulting in a massive oil spill. The Appellants assert

that they have a breach of contract claim and business disparagement claim that are

This is the second time the parties are before us. Previously, we dismissed an appeal filed by Alabaster, Inc. and Sheffield for lack of jurisdiction, because there was no final judgment or appealable order given BCA’s unresolved counterclaim and request for sanctions. See Alabaster, Inc. v. Coon, No. 09-23-00134-CV, 2024 WL 3708957, at *1–2 (Tex. App.—Beaumont Aug. 8, 2024, no pet.) (mem. op.). The trial court subsequently severed BCA’s counterclaims into a separate cause. After the trial court severed those claims, Appellants initiated a new appeal.

For purposes of clarity, we refer to Charles Arthur Sheffield by his first name.

“tangentially related” to the oil spill. Appellants allege that after the oil spill, in May

2010,

BP contracted with Alabaster to produce 101,655 gallons of one of its

products called Sea-Brat, which is a dispersant designed specifically to

combat ocean oil spill environmental pollution. Following this initial

order, boasting Alabaster’s ability to fulfill their needs, BP prepaid an

additional $450,000 and instructed Alabaster to continue making SeaBrat and not to stop after the first 100,000 gallons were processed.

Without notice, BP terminated its relationship with Alabaster, halting

the pick up and use of the 100,000 gallons of Sea-Brat produced for BP.

This breach of contract resulted in over $2,300,000 in damages.

Appellants also pleaded that BP disparaged Alabaster by claiming (1) Alabaster

could not keep up with production requests, and (2) publicly announcing Sea-Brat’s

formula “included an endocrine disrupting chemical” to explain why BP did not pick

up 100,000 gallons of the product. Alabaster claimed BP’s acts “grossly disparaged”

its brand nationally.

Sheffield contacted BCA in May 2012, and documents show that in June 2012,

Charles and BCA signed a “Contract & Power of Attorney” (“the Agreement”)

related to the oil spill claims, and the parties were Alabaster and BCA. The “Client

Intake” form included with the Agreement explained, “Our claim is that the false or

misleading statements have caused considerable damage to our business.” Among

other things, the Agreement provides,

Client retains and employs Attorneys to represent Client, to investigate

and, if appropriate, file suit for and attempt to recover any damages and

compensation to which Client may be entitled against any party or

parties responsible for same, as well as attempt to compromise and

settle all claims of Client, in connection with or arising out of the events

surrounding the April 20, 2010 explosion of the Deepwater Horizon

offshore drilling rig.

The Agreement included the following arbitration provision:

UNLESS EXEMPTED UNDER § 171.002 OF THE TEXAS CIVIL

PRACTICE AND REMEDIES CODE, ANY DISPUTES

ARISING UNDER OR RELATING TO THE

INTERPRETATION, ENFORCEMENT OR ALLEGED

BREACH OF ANY LEGAL, FIDUCIARY, OR OTHER DUTIES

UNDER THIS AGREEMENT, AND ANY DISPUTES ARISING

UNDER OR RELATING TO THE NEGOTIATION OR

FORMATION OF THIS AGREEMENT, SHALL BE

SUBMITTED TO BINDING ARBITRATION IN BEAUMONT,

TEXAS, UNDER THE AUSPICES OF THE JUDICIAL

ARBITRATION & MEDIATION SERVICES, INC., 1010

LAMAR, SUITE 1350, HOUSTON, TEXAS. JUDGMENT ON

ANY ARBITRATION AWARD MAY BE ENTERED BY ANY

COURT OF JURISDICTION. THIS INCLUDES ANY

DERIVATIVE CLAIMS, INCLUSIVE OF LEGAL

NEGLIGENCE, BREACH OF FIDUCIARY DUTY, FRAUD,

DURESS, MISAPPROPRIATION OF FUNDS, OR ANY OTHER

CLAIMS AGAINST THE LAW FIRM, ITS PARTNERS,

ASSOCIATES, OR OTHER REPRESENTATIVES, ARISING

OUT OF THE LEGAL SERVICES MADE THE BASIS OF THIS

CONTRACT. THIS AGREEMENT SHALL BE INTERPRETED

UNDER THE LAWS OF THE STATE OF TEXAS.

ANY AND ALL DISPUTES, CONTROVERSIES, CLAIMS, OR

DEMANDS ARISING OUT OF OR RELATING TO THIS

ASSIGNMENT OF INTEREST AND POWER OF ATTORNEY

OR ANY PROVISION THEREOF, OR IN ANY WAY

RELATING TO THE RELATIONSHIP BETWEEN ATTORNEY

AND CLIENT 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, AND

NOT IN TRIAL. I SPECIFICALLY WAIVE MY RIGHT TO

HAVE SUCH A DISPUTE CONSIDERED BY COURT AND

JURY AND CONSENT TO THE SUBMISSION OF ANY SUCH

DISPUTE TO AN ARBITRATOR SELECTED BY AN

ATTORNEY AND MYSELF OR SELECTED BY THE COURT.

SUCH ARBITRATION PROCEEDINGS SHALL BE

CONDUCTED IN BEAUMONT, TEXAS AND IN

ACCORDANCE WITH THE RULES AND PROCEDURES

ADOPTED BY THE AMERICAN ARBITRATION

ASSOCIATION. ANY SUCH DISPUTE SHALL BE GOVERNED

BY THE LAWS OF THE STATE OF TEXAS.

CLIENT UNDERSTANDS AND HEREBY ACKNOWLEDGES,

BY SIGNING THIS AGREEMENT, THAT THERE ARE

ADVANTAGES AND DISADVANTAGES OF ARBITRATION,

INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING: (1)

THE COST AND TIME SAVINGS FREQUENTLY FOUND IN

ARBITRATION; (2) THE WAIVER OF SIGNIFICANT RIGHTS,

SUCH AS THE RIGHT TO A JURY TRIAL, IN ARBITRATION;

(3) THE POSSIBLE REDUCED LEVEL OF DISCOVERY

OFTEN FOUND IN ARBITRATION PROCEEDINGS; (4) THE

RELAXED APPLICATION OF THE RULES OF TRIAL IN

ARBITRATION; (5) THE LOSS OF THE RIGHT TO A

JUDICIAL APPEAL BECAUSE ARBITRATION DECISIONS

CAN BE CHALLENGED ONLY ON VERY LIMITED

GROUNDS; (6) THE PRIVACY OF THE ARBITRATION

PROCESS COMPARED TO A PUBLIC TRIAL; AND (7) THE

OBLIGATION OF CLIENT TO PAY SOME OR ALL OF THE

FEES AND COSTS OF ARBITRATION, AND THOSE

EXPENSES CAN BE SUBSTANTIAL. CLIENT ALSO

UNDERSTANDS THAT THE ARBITRATION PROVISION

ABOVE DOES NOT LIMIT LAW FIRM’S LIABILITY FOR

MALPRACTICE[.]

In October 2013, Charles passed away. In May 2016, Alabaster settled its Oil

Pollution Act (“OPA”) claims against BP, though the terms were confidential.

Later, in April 2017, Alabaster and Sheffield initiated this legal malpractice

lawsuit against BCA. Alabaster alleged that they retained BCA to handle all claims

against BP. Instead, according to Alabaster, BCA only filed the OPA claim.

Appellants asserted that BCA failed to timely pursue their claims for breach of

contract and business disparagement against BP. In this legal malpractice action,

Alabaster and Sheffield sued BCA and asserted claims for negligence and breach of

fiduciary duty.

BCA answered stating that Sheffield’s father, Charles, who was then

Alabaster’s CEO, had signed the Agreement with BCA in June 2012. BCA noted

that the Agreement did not mention a breach of contract claim against BP for failing

to purchase Alabaster’s products. Even so, BCA asserted that it reviewed Alabaster’s

potential claims against BP for breach of contract and business disparagement and

requested supporting documentation. According to BCA, after reviewing the

information, BCA determined it would not pursue those claims on behalf of

Alabaster. BCA represented that Coon personally discussed this with Charles and

advised that BCA would not handle those claims but “would handle a loss of income

claim for losses directly associated with the Spill.” BCA explained it did so based

on the lack of documentation supporting a breach of contract claim against BP on

behalf of Alabaster and that it could not establish such a claim.

BCA also alleged in its Answer that on March 19, 2013, Sheffield received a

letter individually and as a representative of Alabaster stating that BCA was not

representing Alabaster or Sheffield on the claim against BP for breach of contract

and use of its product. BCA stated that it had recommended Sheffield get a second

opinion, and BCA confirmed it only represented Sheffield and Alabaster for the

OPA claims. BCA also asserted that it handled claims from Alabaster and a

secondary company “BRAT” for business “disparagement, tort claims and contract

claims against Aztron.” The parties signed a new contract in July 2013, concerning

this separate case against an unrelated defendant. BCA explained that on May 22,

2014, Sheffield responded to BCA’s March 19, 2013, letter via email and asked the

firm to reconsider handling the breach of contract and business disparagement

claims against BP, but BCA refused. 3 BCA asserted that BP purchased 100,000

gallons of cleanup products from Alabaster after the spill but chose not to purchase

more, and the Coast Guard (rather than BP) raised questions about Alabaster’s

product’s toxicity. BCA also responded that it negotiated a settlement for Alabaster

under the OPA, and Sheffield signed a release of all claims against BP.

BCA asserted various affirmative defenses. BCA also counterclaimed against

Alabaster for breach of contract, filing a “frivolous lawsuit,” and sought sanctions.

It also moved to dismiss under Rule 91a.

According to BCA, Sheffield’s email was sent to a former BCA lawyer handling the case against Aztron at the time, who ultimately forwarded it to BCA on May 17, 2014.

The parties entered an agreed scheduling order, which specially set the case

for trial on November 26, 2018. They also engaged in written discovery that included

document production, interrogatories, requests for admission, and disclosures.

A. Motion to Compel Arbitration, Response, and Motion for Reconsideration

In April 2018, BCA filed Defendants’ Motion to Compel Arbitration and

Verified Motion to Abate. Defendants asserted that the parties entered a contract in

June 2012, which contains a mandatory arbitration provision found in paragraph

15.1 of the Agreement. Although the Motion to Compel Arbitration purported to

attach the relevant portion of the Agreement, it was not attached to the original

Motion to Compel Arbitration. BCA contended that the entire subject matter of

Plaintiffs’ lawsuit was subject to binding arbitration. It also asked that the trial court

stay the litigation pending referral to arbitration. Newell executed the attached

verification, which stated that “he has read the foregoing Motion to Compel

Arbitration and Motion to Abate Lawsuit and confirms that the facts stated in it are

within his knowledge and are true and correct.” BCA set its Motion to Compel

Arbitration and Verified Motion to Abate for hearing on May 18, 2018.

On May 16, 2018, Plaintiffs filed their Response to Defendants’ Motion to

Compel Arbitration and Verified Motion to Abate. They included multiple exhibits

with their Response. Plaintiffs countered that BCA’s Motion to Compel Arbitration

should be denied for three reasons. First, they argued that Defendants failed to

present a valid and enforceable arbitration agreement between them and Defendants

relating to or governing the claims at issue and asserted that Defendants admit there

is no such written agreement. Second, Plaintiffs contended that even if a prior

agreement between Alabaster and Defendants governed this dispute, Alabaster was

unrepresented by separate counsel, and BCA never advised Alabaster to seek outside

counsel to advise it on the Agreement, rendering the Agreement unenforceable under

its plain language and Texas law. Third, Plaintiffs asserted that Defendants expressly

waived their right to arbitrate by counterclaiming against Plaintiffs and seeking

dismissal on the merits. At a minimum, BCA implicitly waived arbitration by

substantially invoking the judicial process to Alabaster’s prejudice.

Plaintiffs argued that BCA denied representing Alabaster on its breach of

contract and business disparagement claims, so those claims could not fall under the

scope of the arbitration agreement. Plus, they argued that since BCA claimed it never

represented Sheffield individually, his claims cannot be subject to the arbitration

agreement. Alabaster also complained that BCA failed to attach the arbitration

agreement to their motion, and that alone is fatal.

Alabaster also countered that even if the June 28, 2012, Agreement governs

the dispute, it expressly states that it would apply unless exempted under Texas Civil

Practice and Remedies Code section 171.002, the Texas Arbitration Act (“TAA”).

According to Alabaster, the TAA does not apply to personal injury claims unless the

parties received the advice of counsel and the parties and their counsel sign the

agreement, which did not happen here. They also contended that the legal

malpractice claim is a claim for personal injury, and that prior Ninth Court of

Appeals authority holds that is the case. In support of this argument, Alabaster cited

Sample v. Freeman, 873 S.W.2d 470, 476 (Tex. App.—Beaumont 1994, writ denied).

Alternatively, Alabaster argued that BCA waived the right to seek arbitration

expressly and implicitly by their conduct, including filing counterclaims,

propounding and answering “extensive discovery,” and agreeing to a scheduling

order with a preferential trial setting. Alabaster also submitted a declaration with

their costs incurred answering discovery, which they claimed was more than $30,000.

With its Response, Alabaster attached the following as exhibits: Declaration

of John Sheffield attaching the contract purportedly signed by his father, who he

claimed was not in the office then and incapable of signing due to dementia;

Attorney Retention Contract dated June 28, 2012, that included the arbitration

agreement signed by Charles Sheffield and Newell with a Client Intake form;

Defendants’ First Amended Response to Plaintiffs’ First Set of Interrogatories;

BCA’s Special Exceptions, Original Answer, General Denial, and Affirmative

Defenses; Declaration of David Eric Kassab authenticating exhibits and describing

hours spent and costs incurred answering discovery; Agreed Scheduling Order with

preferential trial setting; emails between the parties regarding deposition dates and

discovery; Plaintiffs’ Joint Objections and Answers to Defendants’ First Set of

Interrogatories.

BCA cancelled the scheduled hearing on its Motion to Compel Arbitration the

day before the scheduled hearing. On the same day, May 17, 2018, it filed an

Amended Motion to Compel Arbitration and Verified Motion to Abate. It again

attached Newell’s verification, and this time, it attached the BCA Attorney Retention

Contract dated June 28, 2012, with the intake form. Otherwise, its arguments

remained the same. BCA set its Amended Motion to Compel Arbitration to be heard

on June 19, 2018. That day, after the hearing, the trial court signed an Order granting

Defendants’ Motion to Compel Arbitration and Verified Motion to Abate.

Over a year later, on September 9, 2019, Alabaster filed a Motion to

Reconsider Order Compelling Arbitration. In the Motion to Reconsider, Plaintiffs

claimed that Alabaster hired BCA to pursue breach of contract and business

disparagement claims against BP separately from the OPA claims. They asserted

that instead, BCA “comingled” Alabaster’s claims generically with many other OPA

plaintiffs and point to the “Presentment Form” BCA prepared on its behalf claiming

damages of $250,000,000. Alabaster alleged that BCA did nothing to further

Alabaster’s “true claims” for breach of contract and business disparagement; thus,

“those claims were first barred by the statute of limitations and subsequently

released.” Plaintiffs also argued that BCA admitted it did not represent Alabaster on

breach of contract and business disparagement claims and did not represent Sheffield

individually.

Plaintiffs suggested that since the Order compelling arbitration was signed,

Sheffield spent the intervening time “trying to accumulate funds to afford the

enormous cost of arbitration.” Plaintiffs alleged that given the “poor financial status”

of Sheffield and Alabaster, arbitration was “cost prohibitive, rendering the

enforcement of the arbitration provision unconscionable.” So, they filed the Motion

to Reconsider “in the interest of justice.” Alabaster argued that excessive arbitration

costs will deny them a forum to litigate their claims, which meant the clause is

unenforceable and the trial court should vacate the order compelling arbitration. In

support of their contention that arbitration is cost prohibitive, Alabaster cited to

arbitrator Alice Oliver-Parrott’s affidavit testimony that they would incur $30,000

to $40,000 to arbitrate; they describe Sheffield’s financial condition and inability to

pay, which they purport to address with bank account information and expenses.

Alternatively, they asserted that BCA should be forced to pay for arbitration.

Alabaster included the following exhibits to the Motion to Reconsider: Order

Compelling Arbitration signed June 19, 2018; BCA “Contract & Power of Attorney”

signed by Charles Sheffield on June 28, 2012, containing the arbitration provision

with the “Client Intake Form” and noting that the claims are for “earnings/profit loss;”

BCA’s Special Exceptions, Original Answer, General Denial, and Affirmative

Defenses; Declaration of John Sheffield attaching bank statements and medical bills;

Sheffield’s bank statements; Sheffield’s medical bills; Affidavit of Alice OliverParrott describing costs of arbitration for similar cases, estimating $50,000 to

$70,000; AAA commercial arbitration rules and mediation procedures with fee

schedules; JAMS Arbitration Schedule of Fees and Costs; AAA Commercial

Arbitration Rules and Mediation Procedures; JAMS Comprehensive Arbitration

Rules & Procedures; unsigned Declaration of David Eric Kassab attaching

contingency fee agreement with Plaintiffs and requiring Plaintiffs to bear arbitration

costs; and Plaintiffs’ fee agreement with Kassab.

On October 7, 2019, BCA filed its Response to Motion to Reconsider Order

Compelling Arbitration. BCA contended that the trial court correctly ordered the

case to arbitration, as the parties had an agreement to do so. It also asserted that it

considered but refused to handle the breach of contract and business disparagement

claims and only handled OPA claims for losses directly tied to the spill. BCA

responded that it advised Sheffield of that in March 2013 and advised him to seek a

second opinion. BCA also asserted that it secured a settlement under the OPA for

Alabaster’s claims against BP, that Alabaster settled, and Sheffield signed a release

of all claims against BP.

On October 10, 2019, the trial court heard Plaintiffs’ Motion for

Reconsideration. At the hearing, Alabaster represented that the only thing before the

trial court was unconscionability and not entering into the contract. The trial court

took the motion under advisement to give the parties time to mediate. When the

parties failed to resolve their dispute, on January 6, 2020, the trial court signed an

Order denying Plaintiffs’ Motion for Reconsideration.

B. Dismissal for Want of Prosecution

The case languished on the court’s docket for eight more months until

September 28, 2020, when the trial court placed it on the Dismissal Docket and

scheduled it for dismissal on December 4, 2020. Alabaster did not file its Complaint

and Demand for Arbitration with the AAA until November 6, 2020, after it was

placed on the Dismissal Docket. The day before the scheduled dismissal, on

December 3, 2020, Alabaster sent a letter to the trial court blaming the delay on

Sheffield’s “dire” financial situation and COVID, again explaining that he spent the

intervening months trying to accumulate funds to afford arbitration. Plaintiffs also

claimed they sought a hardship waiver of the filing fees with the AAA and asked the

trial court to leave the case on its docket pending resolution of the arbitration

proceeding or notice from the parties. Alabaster also attached exhibits to the letter,

including a copy of the Complaint they filed with the AAA, Sheffield’s declaration

outlining his financial situation, and a copy of the hardship application they filed

with the AAA, among other things.

On September 14, 2022, BCA filed Defendants’ Motion to Dismiss with

Prejudice and attached letters from the AAA stating that it was dismissing the

arbitration proceeding for nonpayment. BCA moved to dismiss under Rule 165a. In

the motion, BCA outlined the years-long history between the parties and asserted

that the trial court properly ordered the case to arbitration. BCA argued that despite

claims of an inability to pay, Alabaster received a “significant settlement” from BP

for its OPA claims, which should have been “more than enough to pay for arbitration,

multiple times.” BCA contended that Plaintiffs filed the case in April 2017, and

despite being given ample opportunity, failed to pay the arbitrator. BCA also argued

that although it paid its portion of the arbitrator’s fees, the Plaintiffs failed to do so,

and in March 2022, the AAA notified the parties it was closing the matter for

nonpayment.

On December 27, 2022, the trial court signed an Order granting Defendants’

Motion to Dismiss with Prejudice. Thereafter, Alabaster timely filed a Verified

Motion for New Trial and Motion to Reinstate, claiming that it never received notice

of a hearing on Defendants’ Motion to Dismiss with Prejudice. They also asserted

that the Order itself does not state that there was a hearing, nor does the docket sheet

indicate there was a hearing. Alabaster contended that under Rule 165a, they were

entitled to notice and a hearing. On February 9, 2023, the trial court reinstated the

case and vacated its earlier dismissal order.

After the trial court reinstated the case, BCA reset Defendants’ Motion to

Dismiss with Prejudice for hearing on March 23, 2023. A week before the scheduled

hearing, Alabaster filed its Response to Defendants’ Motion to Dismiss with

Prejudice. Plaintiffs contended that “the ambiguous and invalid arbitration provision

is still unconscionable[].” They again asserted that they could not afford arbitration,

but the AAA denied their request to waive fees. They argued the provision remains

unconscionable, and they remain in limbo. Plaintiffs countered that dismissal under

Rule 165a for want of prosecution is improper, because they never failed to appear

and wanted to litigate their claims in court. They also responded that if BCA wanted

arbitration, BCA should pay for it. Plaintiffs again asked the trial court to vacate the

Order compelling arbitration and allow the case to proceed in court.

Plaintiffs re-urged the arguments in their Response to Defendants’ Motion to

Compel Arbitration:

(1) Defendants failed to present a valid agreement to arbitrate, (2) the

purported arbitration agreement is invalid because it does not apply to

a claim for personal injury like this legal malpractice claim, (3)

Defendants waived their right to arbitration by invoking the judicial

process, and (4) enforcement of the purported arbitration provision is

unconscionable and unenforceable.

Plaintiffs argued that even if the arbitration provision signed by Sheffield’s father,

Charles, relating to OPA claims was enforceable and could bind Sheffield and

Alabaster to arbitrate malpractice claims arising out of other underlying claims, “it

is unenforceable because the parties did not have a meeting of the minds on the

essential terms of their arbitration agreement.” They responded that since the

arbitration provision stated that it would be arbitrated using JAMS procedures but

submitted to AAA, it contained conflicting clauses that would nullify each other and

indicated there was no meeting of the minds.

On April 6, 2023, the trial court signed an Order Granting Defendants’ Motion

to Dismiss but did so without prejudice.

C. Prior Appeal

On May 3, 2023, Alabaster and Sheffield filed their Notice of Appeal

indicating they were appealing: (1) the Order denying Plaintiffs’ Motion for

Reconsideration, signed January 6, 2020; and (2) the Order Granting Defendants’

Motion to Dismiss for Want of Prosecution, signed on April 6, 2023. On June 20,

2024, this Court abated that appeal and remanded the case to the trial court to give

the trial court the opportunity to issue further orders or judgments necessary to

clarify its April 6, 2023 Order or to create a final, appealable order in this cause, as

the dismissal order did not address BCA’s counterclaims, thus was not a final,

appealable order. See Alabaster, Inc. v. Coon, No. 09-23-00134-CV, 2024 WL

3708957, at *1 (Tex. App.—Beaumont Aug. 8, 2024, no pet.) (mem. op.). This Court

gave the parties a deadline of July 22, 2024, to provide a supplemental clerk’s record

with a final, appealable order or judgment and warned that otherwise, we would

reinstate the appeal and dismiss it for want of jurisdiction. See id. When the parties

failed to provide a supplemental clerk’s record or request more time to obtain a final

judgment or severance order, we reinstated the appeal and dismissed it for want of

jurisdiction. See id.

On August 8, 2024, the trial court severed BCA’s counterclaims into a

separate cause. On August 13, 2024, Plaintiffs filed a new Notice of Appeal,

initiating this appeal of the same orders.

II. ISSUE ONE: AGREEMENT TO ARBITRATE

In issue one, Appellants contend the trial court erred by compelling arbitration.

In support of this issue, they argue: (1) BCA failed to establish a valid arbitration

agreement between the parties governing the claims made the basis of this lawsuit,

as BCA stipulated that no such agreement exists; (2) even if the Agreement

containing the arbitration provision governs this dispute, the arbitration provision is

unenforceable because it does not comply with section 171.002 of the TAA; and (3)

BCA expressly or implicitly waived its right to arbitrate.

A. General Arbitration Principles: Standard of Review and Applicable Law

Gateway matters such as whether a valid agreement to arbitrate exists and

whether an arbitration agreement is binding on a nonparty are questions of law we

review de novo. See Lennar Homes of Tex. Land and Constr., Ltd. v. Whitely, 672

S.W.3d 367, 376 (Tex. 2023) (citations omitted) (discussing in the context of the

FAA); see also Baby Dolls Topless Saloons, Inc. v. Sotero, 642 S.W.3d 583, 586

(Tex. 2022); In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex. 2005); J.M.

Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). The party seeking to

compel arbitration has the initial burden of proving that a valid arbitration agreement

exists and that the claims are within the agreement’s scope. See Wagner v. Apache

Corp., 627 S.W.3d 277, 282 (Tex. 2021) (discussing in the context of FAA); In re

Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig.

proceeding); J.M. Davidson, Inc., 128 S.W.3d at 227. Ordinary principles of state

contract law determine whether a valid agreement to arbitrate exists. Kellogg Brown

& Root, Inc., 166 S.W.3d at 738. After the proponent of arbitration makes the

required showings, the burden then shifts to the party opposing arbitration to raise

an affirmative defense to enforcing arbitration. See Henry v. Cash Biz, LP, 551

S.W.3d 111, 115 (Tex. 2018); Venture Cotton Coop. v. Freeman, 435 S.W.3d 222,

227 (Tex. 2014). Once a party establishes the existence of a valid arbitration

agreement, “a strong presumption favoring arbitration arises,” and we “resolve any

doubts as to the agreement’s scope, waiver, and other issues unrelated to its validity

in favor of arbitration.” Ellis v. Schlimmer, 337 S.W.3d 860, 861–62 (Tex. 2011)

(citing J.M. Davidson, 128 S.W.3d at 227; In re Poly-America, L.P., 262 S.W.3d

337, 348 (Tex. 2008)) (other citations omitted).

When the facts surrounding the defense of unconscionability are uncontested,

we also employ de novo review to determine whether the agreement is

unconscionable. See Lennar Homes of Tex. Inc. v. Rafiei, 687 S.W.3d 726, 730 (Tex.

2024); Royston, Rayzor, Vickery, & Williams, LLP v. Lopez, 467 S.W.3d 494, 499

(Tex. 2015) (citation omitted). If, however, the facts surrounding the affirmative

defense of unconscionability are uncontested, we review the trial court’s factual

determinations for an abuse of discretion. See Bonded Builders Home Warranty

Ass’n of Tex. v. Rockoff, 509 S.W.3d 523, 531–32 (Tex. App.—El Paso 2016, no

pet.); see also Rachal v. Reitz, 403 S.W.3d 840, 843 (Tex. 2013) (“When reviewing

a denial of a motion to compel arbitration, we defer to the trial court’s factual

determinations that are supported by evidence but review the trial court’s legal

determinations de novo.”).

Generally, an agreement to arbitrate is not enforceable against a non-party to

the agreement, but it depends on the parties’ intent. See Whitely, 672 S.W.3d at 376

(citations omitted); Jody James Farms, JV v. Altman Grp., Inc., 547 S.W.3d 624,

639–40 (Tex. 2018). “Courts ‘have recognized six theories, arising out of common

principles of contract and agency law, that may bind non-signatories to arbitration

agreements: (1) incorporation by reference; (2) assumption; (3) agency; (4) alter ego;

(5) equitable estoppel; and (6) third-party beneficiary.’” Whitely, 672 S.W.3d at 376

(quoting Kellogg Brown & Root, 166 S.W.3d at 739).

B. Analysis: Issue One

1. Existence of Valid Arbitration Agreement Governing the Claims

In support of Appellants’ argument that BCA failed to establish the existence

of a valid arbitration agreement, they contend that BCA failed to produce an

authenticated copy of the Agreement, that BCA stipulated no agreement covered

these claims, and did not establish it was enforceable as to Sheffield. This ignores

that Appellants pleaded in their Original Petition and First Amended Petition, their

live pleading, that “Plaintiffs signed this agreement as they understood Defendants

would be pursuing claims against BP for their ‘lost Profits’ resulting from the breach

of contract and business disparagement.” “Assertions of fact, not pled in the

alternative, in the live pleadings of a party are regarded as formal judicial

admissions.” Hous. First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983); see

Weekley Homes, LLC v. Paniagua, 646 S.W.3d 821, 828 (Tex. 2022) (citations

omitted). The Texas Supreme Court has explained judicial admissions in an

opposing party’s pleadings may be used as evidence to support a summary-judgment

motion. See Paniagua, 646 S.W.3d at 827–28 (citing Regency Field Servs., LLC v.

Swift Energy Operating, Inc., 622 S.W.3d 807, 819 (Tex. 2021)). In their Response

to the Motion to Compel Arbitration Appellants likewise admit

On or about June 28, 2018, Charles Arthur Sheffield (“Arthur”), on

behalf of Plaintiff Alabaster, Inc. (“Alabaster”) signed a Contract and

Power of Attorney with BCA wherein BCA agreed to represent

Alabaster in its claims that are “in connection with or arising out of the

events surrounding the April 20, 2010 explosion of the Deepwater

Horizon offshore rig.”

Although Appellants attached Sheffield’s affidavit disputing whether Charles signed

the Agreement containing the arbitration provision, they did not dispute in their

Response that Charles signed it; and the Response and their live pleading

affirmatively state that Charles signed the Agreement containing the arbitration

provision.

In its Amended Motion to Compel Arbitration, BCA attached a copy of the

Agreement containing the arbitration provision. Even if BCA failed to authenticate

the Agreement, Appellants attached an identical copy of the Agreement, which

Sheffield himself authenticated in his affidavit by stating it was a “true and correct

copy” of the Agreement to their Response to Defendants’ Motion to Compel

Arbitration. “The evidentiary standards for a motion to compel arbitration are the

same as for a motion for summary judgment.” Mobil Oil Fed. Credit Union v. Smith,

No. 09-22-00393-CV, 2024 WL 630000, at *6 (Tex. App.—Beaumont Feb. 15, 2024,

no pet.) (mem. op.) (citing In re Estate of Guerrero, 465 S.W.3d 693, 699–700 (Tex.

App.—Houston [14th Dist.] 2015, pet. denied)); see also Tex. Health Res. v. Kruse,

No. 05-13-01754-CV, 2014 WL 3408636, at *6 (Tex. App.—Dallas July 11, 2014,

pet. denied) (noting “procedure is akin to a motion for summary judgment and is

subject to the same evidentiary standards”). “[T]he trial court may summarily decide

whether to compel arbitration on the basis of affidavits, pleadings, discovery, and

stipulations.” Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992).

Accordingly, a court may consider evidence attached to either the motion or a

response. See Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 835 (Tex. 2018)

(per curiam) (discussing in the context of summary judgment); Wilson v. Buford,

904 S.W.2d 628, 629 (Tex. 1995) (per curiam). “A party can satisfy its evidentiary

burden to prove an arbitration agreement’s existence by submitting authenticated

copies of an agreement containing an arbitration clause.” Smith, 2024 WL 630000,

at *7 (citations omitted).

Since Appellants affirmatively pleaded that they signed the Agreement, that

fact was not in dispute and constituted a judicial admission that the trial court could

have considered against them. See Paniagua, 646 S.W.3d at 827–28; Regency Field

Servs., 622 S.W.3d at 819–20; Musick, 650 S.W.2d at 767. On appeal, Appellants

also acknowledge that Charles, Alabaster’s founder, signed the contract.4 Likewise,

an authenticated copy of the Agreement which was produced by Appellants was

evidence the trial court could consider in ruling on the Motion to Compel Arbitration.

See Pasko, 544 S.W.3d at 835; Wilson, 904 S.W.2d at 629; Tipps, 842 S.W.2d at

269; see also Kruse, 2014 WL 3408636, at *6. Based on this record, we conclude

that the existence of an arbitration agreement was established.

Although Appellants repeatedly mention that Charles suffered from dementia at the time, they do not seek to avoid the Agreement on that basis.

We now turn to Appellants’ arguments that the arbitration provision did not

cover the claims at issue. Whether an issue falls within the scope of an arbitration

agreement generally depends on the arbitration agreement’s wording, and any

doubts as to whether an issue falls in the scope of the arbitration should be resolved

in favor of arbitration. Henry, 551 S.W.3d at 115–16 (citations omitted); Smith, 2024

WL 630000, at *7; see also In re Serv. Corp. Intern., 85 S.W.3d 171, 174 (Tex.

2002) (citation omitted). To determine whether a party’s claims fall within an

arbitration agreement’s scope, we focus on the petition’s factual allegations rather

than the legal causes of action asserted. In re FirstMerit Bank, N.A., 52 S.W.3d 749,

754 (Tex. 2001).

As to Plaintiffs’ assertion that BCA stipulated no agreement covered the

breach of contract and business disparagement claims, the record does not show

there was a stipulation. Rather, the record reveals that in response to Alabaster’s

interrogatories, BCA answered, “Defendants represented Plaintiff, Alabaster, Inc.

for an OPA Claim. Defendants reviewed potential claims for Plaintiff Alabaster, Inc.

regarding breach of contract and defamation against BP. However, BCA declined

representation of these claims both orally and in writing.” This answer was not a

“stipulation” by BCA that no agreement covered the breach of contract claim or

defamation claim, nor is it a stipulation that the Arbitration agreement did not apply

to the alleged malpractice claim regarding the breach of contract or defamation

claims. Alabaster also points to BCA’s interrogatory answer that it “has never

represented John Sheffield individually for any case.” Again, that answer does not

constitute a stipulation on point. “In construing a contract, including an arbitration

provision, our primary concern is to determine the intent of the parties as expressed

by the plain language of the contract.” Wagner, 627 S.W.3d at 285 (citation omitted).

Neither of BCA’s answers includes a stipulation that there was no agreement to

arbitrate these claims. Rather, the language of the Agreement states,

ANY DISPUTES ARISING UNDER OR RELATING TO THE

INTERPRETATION, ENFORCEMENT OR ALLEGED

BREACH OF ANY LEGAL, FIDUCIARY, OR OTHER DUTIES

UNDER THIS AGREEMENT, AND ANY DISPUTES ARISING

UNDER OR RELATING TO THE NEGOTIATION OR

FORMATION OF THIS AGREEMENT, SHALL BE

SUBMITTED TO BINDING ARBITRATION[.]

THIS INCLUDES ANY DERIVATIVE CLAIMS, INCLUSIVE

OF LEGAL NEGLIGENCE, BREACH OF FIDUCIARY DUTY,

FRAUD, DURESS, MISAPPROPRIATION OF FUNDS, OR ANY

OTHER CLAIMS AGAINST THE LAW FIRM, ITS PARTNERS,

ASSOCIATES, OR OTHER REPRESENTATIVES, ARISING

OUT OF THE LEGAL SERVICES MADE THE BASIS OF THIS

CONTRACT.

ANY AND ALL DISPUTES, CONTROVERSIES, CLAIMS, OR

DEMANDS ARISING OUT OF . . . OR IN ANY WAY RELATING

TO THE RELATIONSHIP BETWEEN ATTORNEY AND

CLIENT SHALL BE RESOLVED BY BINDING ARBITRATION

PURSUANT TO THE FEDERAL ARBITRATION ACT[.]

Elsewhere, the Agreement states that it “shall be binding upon and inure to the

benefit of the Parties hereto and their respective heirs, executors, administrators,

legal representatives, successors and assigns where permitted by this Agreement.”

Appellants pleaded that Sheffield is the “current owner of Alabaster” and that

the breach of contract claim was based on BP’s purchase of a cleaning agent that

Alabaster manufactured. As alleged in Alabaster’s live pleading, they assert that the

business disparagement claim was due to negative comments that BP made about

the product Alabaster manufactured and that those statements “grossly disparaged

Alabaster’s nationally recognized brand.” Sheffield avers in his affidavit that

Charles “managed the company as the defacto Chief Executive Officer[]” and that

Sheffield “took over” for his father and is currently the “Chief Executive Officer and

President of Alabaster.” As pleaded, Sheffield has alleged damages to Alabaster

rather than to him individually. The evidence and factual allegations established that

Sheffield was Charles’s heir and successor at Alabaster.

BCA’s discovery responses are consistent with the existence of the

Agreement containing the arbitration provision. BCA describes the nature of its

representation, that it considered the business disparagement and breach of contract

claims, but it ultimately declined to handle them. That admission or statement does

not remove those claims from the broad scope of the Agreement’s express language,

which includes phrases like “any and all,” “arising out of,” “in any way relating to

the relationship between the attorney and client,” and “any derivative claims.” See

Touchstone v. Gagliano, No. 09-21-00342-CV, 2023 WL 7395409, at *2–3 (Tex.

App.—Beaumont Nov. 9, 2023, no pet.) (mem. op.) (explaining that in the context

of an arbitration agreement applying to non-signatories that similar language was

“very broad” and concluding that non-signatories were bound to the Agreement’s

terms). The Agreement also expressly includes claims for “legal negligence” and

“the formation of the Agreement” as ones that the parties would arbitrate.

Whether the claims in this legal malpractice case based on alleged

mishandling of a breach of contract and business disparagement claim fall within the

arbitration agreement’s scope depends on the arbitration agreement’s wording, and

we resolve any doubts as to the scope in favor of arbitration. See Wagner, 627

S.W.3d at 285; Henry, 551 S.W.3d at 115–16; Smith, 2024 WL 630000, at *7. We

focus on Alabaster and Sheffield’s factual allegations, which we have outlined

above. See In re FirstMerit Bank, N.A., 52 S.W.3d at 754; Smith, 2024 WL 630000,

at *7. The express language of this arbitration agreement is broad and evidenced the

parties’ intent to cover a broad swath of claims, “any and all,” including “legal

malpractice,” and those “arising out of,” or “in any way relating to the relationship

between the attorney and client,” and “any derivative claims.” See Touchstone, 2023

WL 7395409, at *2–3; see also Henry, 551 S.W.3d at 115–16; Smith, 2024 WL

630000, at *7. The Agreement’s express language likewise establishes that the

parties intended for it to cover “heirs” and “successors,” which meant it applied to

Sheffield as a non-signatory. See Whitely, 672 S.W.3d at 376 (citations omitted);

Jody James Farms, JV, 547 S.W.3d at 640. Appellants’ arguments that BCA’s

“stipulations” and Sheffield being a non-signatory are unavailing, and we conclude

the claims fall within the broad scope of the arbitration agreement’s plain language.

2. Section 171.002 of the Texas Civil Practice and Remedies Code

Appellants next assert that even if a valid arbitration agreement existed that

covered the claims at issue, it is unenforceable because it does not comply with the

TAA, and specifically section 171.002 of the Texas Civil Practice and Remedies

Code. They contend that their claim for legal malpractice and breach of fiduciary

duty are “personal injury claims” to which the TAA does not apply. In support of

their position that legal malpractice constitutes a claim for personal injury,

Appellants rely on this Court’s decision in Sample v. Freeman, along with several

cases from our sister court in Corpus Christi which relied on our decision in

determining that a legal malpractice claim constituted a claim for personal injury

under the TAA. See 873 S.W.2d at 476; Bennett v. Leas, No. 13-06-469-CV, 2008

WL 2525403, at *7 (Tex. App.—Corpus Christi June 26, 2008, pet. denied) (mem.

op.); In re Godt, 28 S.W.3d 732, 738–39 (Tex. App.—Corpus Christi 2000, original

proceeding). Appellants contend that since this malpractice claim constitutes a

personal injury claim, Texas Civil Practice and Remedies Code section 171.002

requires the Agreement to be “signed by each party and each party’s attorney” after

advice of counsel, which was not done here. See Tex. Civ. Prac. & Rem. Code Ann.

§ 171.002(a)(3), (c)(1)–(2).

We find that Appellants reliance on Sample v. Freeman is misplaced for

several reasons. First, Appellants read Sample too broadly. In that case, we held that

attorney malpractice was a “personal injury action under Cavnar.” See Sample, 873

S.W.3d at 476. In Cavnar v. Quality Control Parking, Inc., the Texas Supreme Court

addressed the specific question of whether prejudgment interest was recoverable in

personal injury cases and determined it was. See 696 S.W.2d 549, 550 (Tex. 1985).

As Cavnar explained, “in an effort to fully compensate injured plaintiffs, the courts

of this state have eroded” a prior “limitation on prejudgment interest until the

distinction between claims in which the damages are or are not fixed and

ascertainable has become forced and artificial. Plaintiffs have been permitted to

recover prejudgment interest on both liquidated and unliquidated claims in both

contract and tort disputes.” Id. The Cavnar opinion noted various cases where

prejudgment interest was awarded including breach of contract, breach of fiduciary

duty, economic damages, and injury to cattle. See id. The Court continued by

criticizing the “illogical” barrier to recovery of prejudgment interest at that time in

personal injury cases and explained that “the measure of recovery for damages in a

personal injury action is no more uncertain and unliquidated than that in many other

tort and contractual disputes where prejudgment interest has been allowed.”

Id. Cavnar ultimately held that “a prevailing plaintiff may recover prejudgment

interest compounded daily (based on a 365–day year) on damages that have accrued

by the time of judgment.”5 Id.

So, a recovery of prejudgment Cavnar interest was the context in which this

Court decided Sample, and our ruling that the legal malpractice claim was one for

personal injury expressly stated it was for that purpose only. Our holding in Sample

was not as broad as Alabaster advocates, and we expressly decline to extend that

ruling to treat a legal malpractice cause of action as a personal injury claim as

referenced under Texas Civil Practice and Remedies Code section 171.002 of the

TAA.

Second, to the extent our Sample decision has been relied upon to infer that

this Court has ruled that a legal malpractice claim is a “personal injury claim” for all

purposes or for the purpose of section 171.002 of the Texas Arbitration Act, we

expressly overrule Sample for the reasons explained by our sister courts, in the

Houston First and Fourteenth, Amarillo, and San Antonio. See In re Tuan Pham, 314

S.W.3d 520, 525–26 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding

[mand. denied]); Chambers v. O’Quinn, 305 S.W.3d 141, 147–48 (Tex. App.—

Cavnar was later legislatively modified with the enactment of tort reform.

See Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 529 (Tex. 1994).

Houston [1st Dist.] 2009, pet. denied); Taylor v. Wilson, 180 S.W.3d 627, 630–31

(Tex. App.—Houston [14th Dist.] 2005, pet. denied); Miller v. Brewer, 118 S.W.3d

896, 899 (Tex. App.—Amarillo 2003, no pet.); In re Hartigan, 107 S.W.3d 684,

690–91 (Tex. App.—San Antonio 2003, pet. denied).

3. Waiver of Right to Arbitrate

In support of issue one, Alabaster also contends that even if there is a valid

agreement to arbitrate, BCA both expressly and impliedly waived its right to do so.

Appellants assert that because BCA filed a counterclaim, conducted “extensive”

discovery causing them to incur costs, pleaded that the parties “were properly before

the court,” and delayed arbitration “for more than a year,” BCA waived its right to

arbitrate.

If the trial court finds that a valid arbitration agreement exists, the burden then

shifts to the party opposing arbitration to raise an affirmative defense to enforcing

arbitration. Bonsmara Nat. Beef Co. v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d

385, 397–98 (Tex. 2020) (quoting J.M. Davidson, 128 S.W.3d at 227). Whether

BCA waived its right to arbitrate is a question of law that we review de novo. See

Henry, 551 S.W.3d at 115; G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458

S.W.3d 502, 511 (Tex. 2015). Whether a party was prejudiced is also a legal question

we review de novo. See Perry Homes v. Cull, 258 S.W.3d 580, 598 (Tex. 2008).

“Waiver is ‘an intentional relinquishment of a known right or intentional

conduct inconsistent with claiming that right.’” LaLonde v. Gosnell, 593 S.W.3d 212,

218–19 (Tex. 2019) (quoting Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430

S.W.3d 384, 391 (Tex. 2014)). “[T]he universal test for implied waiver by litigation

conduct is whether the party’s conduct—action or inaction—clearly demonstrates

the party’s intent to relinquish, abandon, or waive the right at issue—whether the

right originates in a contract, statute, or the constitution[,]” which “is a high

standard.” Id. at 219–20. (citations omitted). There is a strong presumption against

waiver and proving it is a high standard that falls on the party opposing arbitration,

although the presumption is not irrebuttable. See Perry Homes, 258 S.W.3d at 590,

594; In re Fleetwood Homes of Tex., L.P., 257 S.W.3d 692, 695 (Tex. 2008) (orig.

proceeding); In re Bruce Terminix Co., 988 S.W.2d 702, 705 (Tex. 1998) (orig.

proceeding) (noting “heavy burden of proof” and courts resolve any doubt in favor

of arbitration).

The rationale behind finding waiver lies in the “inherent unfairness caused by

‘a party’s attempt to have it both ways by switching between litigation and

arbitration ....’” In re Citigroup Glob. Mkts., Inc., 258 S.W.3d 623, 625 (Tex. 2008)

(orig. proceeding) (quoting Perry Homes, 258 S.W.3d at 597). In determining

whether a party has waived its right to arbitrate, we do so on a case-by-case basis

and look to the totality of the circumstances. See RSL Funding, LLC v. Pippins, 499

S.W.3d 423, 430 (Tex. 2016); Perry Homes, 258 S.W.3d at 590–91; see also

LaLonde, 593 S.W.3d at 220. Among the factors a court considers relevant in

determining whether implied waiver has occurred are the following: whether the

party asserting the right to arbitrate was plaintiff or defendant in the lawsuit, how

long the party waited before seeking arbitration, the reasons for any delay in seeking

to arbitrate, how much discovery and other pretrial activity the party seeking to

arbitrate conducted before seeking arbitration, whether the party seeking to arbitrate

requested the court to dispose of claims on the merits, whether the party seeking to

arbitrate asserted affirmative claims for relief in court, the time and expense the

parties have expended in litigation, and whether the discovery conducted would be

unavailable or useful in arbitration. See RSL Funding, 499 S.W.3d at 430 (citing G.T.

Leach Builders, 458 S.W.3d at 512; Perry Homes, 258 S.W.3d at 590–92).

Generally, no one factor is dispositive, and waiver may be decided based on only a

few of the factors or even a single factor. Perry Homes, 258 S.W.3d at 591. How

much litigation conduct will be considered “substantial” depends on the context. See

id. at 593.

A party’s requesting affirmative relief is an important factor in determining

whether it has substantially invoked the judicial process. See, e.g., Hogg v. Lynch,

Chappell & Alsup, P.C., 480 S.W.3d 767, 786 (Tex. App.—El Paso 2015, no

pet.); Okorafor v. Uncle Sam & Assocs., 295 S.W.3d 27, 40 (Tex. App.—Houston

[1st Dist.] 2009, pet. denied) (finding that defendants had substantially invoked the

judicial process by filing multiple sworn and affirmative defenses, and affirmative

claims for relief, including requests for declaratory relief, attorney’s fees, and

sanctions). Delay alone generally does not establish waiver. See G.T. Leach Builders,

458 S.W.3d at 515; In re Vesta Ins. Grp., Inc., 192 S.W.3d 759, 763 (Tex.

2006) (orig. proceeding) (citation omitted) (concluding two-year delay in requesting

arbitration not enough for waiver). Similarly, purely defensive measures do not

substantially invoke the judicial process. See G.T. Leach Builders, 458 S.W.3d at

513 (citing Tex. R. Civ. P. 91(a)) (filing a counterclaim did not waive the right to

arbitration because the counterclaim was defensive in nature as the counterclaim was

compulsory and could be lost if not filed); see also In re Serv. Corp., 85 S.W.3d at

174 (holding that objecting to a trial setting and moving to dismiss showed intent to

avoid rather than to participate in the judicial process); LJA Eng’g & Surveying v.

Richfield Invest. Corp., 211 S.W.3d 443, 446–47 (Tex. App.—Beaumont 2006, no

pet.) (declining to find waiver and that party opposing arbitration failed to show

prejudice where party seeking to arbitrate moved to dismiss, engaged in “extensive

discovery,” and joined in a motion for continuance). Similarly, a party does not

substantially invoke the judicial process merely by participating in discovery. In re

Bruce Terminix Co., 988 S.W.2d at 704 (concluding party did not substantially

invoke by answering and propounding written discovery); see also G.T. Leach

Builders, 458 S.W.3d at 514.

Participation in the litigation process alone is not enough, rather a party

opposing arbitration must also show it was prejudiced by the other party’s substantial

invocation of the judicial process. See G.T. Leach Builders, 458 S.W.3d at

512; Kennedy Hodges, L.L.P. v. Gobellan, 433 S.W.3d 542, 543 (Tex. 2014). A

party opposing arbitration need not detail the extent of prejudice, only that prejudice

resulted. Perry Homes, 258 S.W.3d at 599. Prejudice or detriment in this context

means an “inherent unfairness caused by ‘a party’s attempt to have it both ways by

switching between litigation and arbitration to its own advantage.’” In re Fleetwood

Homes, 257 S.W.3d at 694 (quoting Perry Homes, 258 S.W.3d at 597). Inherent

unfairness may exist when a party is first forced to litigate an issue and later must

arbitrate the same issue. Perry Homes, 258 S.W.3d at 597 (citation omitted).

Alternatively, inherent unfairness may result when a party seeking arbitration first

uses the judicial process to gain access to information that would be unavailable in

arbitration. See G.T. Leach Builders, 458 S.W.3d at 515. Courts also consider

whether a party incurs additional costs and fees because of its opponent’s actions or

delay. See Williams Indus. Inc. v. Earth Dev. Sys. Corp., 110 S.W.3d 131, 135 (Tex.

App.—Houston [1st Dist.] 2006, no pet.) (concluding party opposing arbitration

failed to meet the heavy burden of establishing prejudice).

Here, Appellants first contend that BCA expressly waived its right to arbitrate

by stating in its answer that “the parties were properly before the court” and agreeing

to a scheduling order with a trial setting. We disagree that BCA’s statement that the

parties were properly before the trial court constituted an express waiver, as that

statement simply means that the necessary parties have been served or appeared,

subjecting them to the trial court’s jurisdiction. Other courts have also rejected the

argument that agreeing to a scheduling order with a trial setting constitutes an

express waiver of the party’s right to arbitrate. See G.T. Leach, 458 S.W.3d at

511 (concluding that agreeing to scheduling order did not establish express waiver

of right to arbitrate); LJA Eng’g, 211 S.W.3d at 447 (concluding that agreeing to

continuance of trial and requesting a trial setting did not result in waiver); see also

Legoland Discovery Centre (Dallas), LLC v. Superior Builders, LLC, 531 S.W.3d

218, 223 (Tex. App.—Fort Worth 2017, no pet.) (determining that agreeing to

scheduling order did not equate to waiver of right to compel arbitration).

Contrary to Appellants’ arguments, the totality of the circumstances before us

do not show that BCA implicitly waived its right to arbitrate through substantial

invocation of the litigation process resulting in prejudice to Appellants. See LaLonde,

593 S.W.3d at 220; RSL Funding, 499 S.W.3d at 430; G.T. Leach Builders, 458

S.W.3d at 515; Perry Homes, 258 S.W.3d at 590. The record instead shows that

Alabaster and Sheffield sued BCA, and BCA answered, asserting a general denial,

affirmative defenses and brought a compulsory counterclaim for breach of contract.

See G.T. Leach Builders, 458 S.W.3d at 513 (filing a counterclaim did not waive the

right to arbitration because the counterclaim was defensive in nature as the

counterclaim was compulsory and could be lost if not filed). Appellants assert that

BCA engaged in “extensive discovery,” resulting in more than $30,000 in attorney’s

fees. Yet, Appellants’ counsel’s affidavit shows that more than half the hours spent

and costs incurred relating to that amount resulted from Appellants’ propounding

discovery to BCA and reviewing documents that it asked BCA to produce. The

discovery propounded by BCA related to ascertaining the precise nature of

Appellants’ claims, and Appellants do not explain how they were prejudiced by

answering this discovery or allege that this information would not be useful in

arbitration. See EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90 (Tex. 1996)

(collecting cases under the FAA and determining where party answered, sent

interrogatories to the plaintiff, and entering an agreed scheduling order was not

prejudicial) (citations omitted).

As to Appellants’ complaint that BCA delayed its request to arbitrate, the

record reflects it was a year to the day after Alabaster sued, and in the interim, on

March 21, 2018, Alabaster amended their petition to add an associate attorney

employed by BCA as a defendant, then served him on April 13, 2018. A little more

than a month after Alabaster added this extra defendant and only three days after he

was served, on April 26, 2018, BCA moved to compel arbitration. Under such

circumstances, where Alabaster added a defendant almost a year after filing suit, we

cannot say that BCA’s moving to compel arbitration shortly after one of its

employees was sued resulted in prejudice to Alabaster. See Richmont Holdings, Inc.

v. Superior Recharge Sys., L.L.C., 455 S.W.3d 573, 576 (Tex. 2014) (citations

omitted) (stating that “mere delay in moving to compel arbitration is not [generally]

enough for waiver” and concluding that nineteen-month delay did not result in

waiver); In re 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); Cooper Indus.,

LLC v. Pepsi-Cola Metro. Bottling Co., Inc., 475 S.W.3d 436, 452 (Tex. App.—

Houston [14th Dist.] 2015, no pet.) (holding that twenty-eight-month delay was

insufficient to waive arbitration adding that party opposing arbitration failed to

differentiate costs incurred in obtaining or responding to discovery and failed to

show discovery would not have otherwise been obtained).

Finally, Appellants contend that BCA’s Rule 91a Motion to Dismiss

substantially invoked the litigation process and constituted a request for a decision

on the merits. BCA’s Motion to Dismiss was included with its answer, and it asserted

that Alabaster’s claims had no basis in law or fact. We cannot say seeking a dismissal

on those grounds was inconsistent with a right to arbitrate, instead it showed that

BCA’s position there should be no litigation at all. Even so, Appellants do not

explain how they were prejudiced by BCA’s Rule 91a Motion to Dismiss. More

importantly, we have previously concluded in certain situations that there was no

waiver of the right to arbitrate when a defendant moved to dismiss, as it showed the

party was trying to avoid litigation rather than participate in it. See LJA Eng’g, 211

S.W.3d at 446 (quoting In re Serv. Corp. Int’l, 85 S.W.3d at 175).

Here, based on the totality of the circumstances, BCA’s delaying for a year in

seeking to compel arbitration but only a month after Alabaster added another

defendant, propounding basic written discovery, agreeing to a scheduling order, and

moving to dismiss claims that it asserted had no basis in law or fact did not result in

waiver. See LaLonde, 593 S.W.3d at 220; RSL Funding, 499 S.W.3d at 430; G.T.

Leach Builders, 458 S.W.3d at 515; Fleetwood Homes, 257 S.W.3d at 694 (citation

omitted); Perry Homes, 258 S.W.3d at 590; see also LJA Eng’g, 211 S.W.3d at

446. On this record, Alabaster did not clear the high hurdle to establish waiver by

showing that BCA substantially invoked the litigation process in a way that

prejudiced Alabaster. See Perry Homes, 258 S.W.3d at 590; In re Bruce Terminix

Co., 988 S.W.2d at 705.

We hold that the trial court did not err in compelling arbitration where there

was an enforceable agreement to arbitrate covering the claims at issue and where

Alabaster failed to establish the affirmative defense of waiver. We overrule issue

one.

III. ISSUE TWO: DENIAL OF MOTION TO RECONSIDER

In issue two, Alabaster contends that the trial court abused its discretion by

denying its Motion to Reconsider. In support of this issue, Alabaster argues that the

arbitration agreement is not enforceable because (1) it is unconscionable, and (2)

there was no meeting of the minds on the essential terms of the agreement.

A. Standard of Review and Applicable Law

We outlined the standard of review in our discussion of issue one above. A

party opposing arbitration because prohibitive cost of arbitrating renders

the agreement to do so unconscionable bears the burden of proof. See Hous. AN

USA, LLC v. Shattenkirk, 669 S.W.3d 392, 395 (Tex. 2023); In re Olshan Found.

Repair Co., 328 S.W.3d 883, 893 (Tex. 2010) (orig. proceeding); see also Rafiei,

687 S.W.3d at 730. “When a court ‘appl[ies] the unconscionability standard, the

crucial inquiry is whether the arbitral forum in a particular case is an adequate and

accessible substitute to litigation, a forum where the litigant can effectively vindicate

his or her rights.’” Rafiei, 687 S.W.3d at 730 (quoting Olshan, 328 S.W.3d at 894).

“To determine unconscionability, a court must first consider ‘a comparison of the

total costs of the two forums’ and decide ‘whether that cost differential is so

substantial as to deter the bringing of claims.’” Id. (quoting Olshan, 328 S.W.3d at

893–94). A proper unconscionability analysis must include a comparison of the

relevant costs between litigating in court versus in arbitration and of the claimant’s

ability to pay the difference in those costs. See id. at 732.

“‘[W]e cannot assess whether [estimated arbitration] fees are what would

prohibit [a claimant] from pursuing his rights without knowing (1) how that amount

relates to the overall expense of litigating versus arbitrating and (2) [the claimant’s]

ability to afford the former but not the latter.’” Id. (quoting Shattenkirk, 669 S.W.3d

at 397) (other citation omitted). “[A]bsent concrete evidence that the increased cost

associated with arbitration, compared to litigation, is what forecloses a party from

pursuing his claims, the party cannot show that those costs are what make the

expense of arbitrating ‘prohibitive.’” Shattenkirk, 669 S.W.3d at 397; see also Rafiei,

687 S.W.3d at 732 (citations omitted). Although courts do not require “that

claimants actually incur the cost of arbitration before they can show its excessiveness,

parties must at least provide evidence of the likely cost of their particular arbitration,

through invoices, expert testimony, reliable cost estimates, or other comparable

evidence.” Olshan, 328 S.W.3d at 895 (citation omitted).

B. Analysis

Over a year after the trial court signed the order compelling arbitration,

Alabaster filed its Motion to Reconsider. With its Motion to Reconsider, among

other things, Alabaster included: JAMS Arbitration Schedule of Fees and Costs;

AAA commercial arbitration rules and mediation procedures including fees and

schedules; Sheffield’s affidavit outlining his money and expenses and purported

inability to afford arbitration plus bank statements from 2018 to 2019 and pharmacy

billing records from 2017; Affidavit of Alice Oliver-Parrott describing the costs of

arbitration for similar cases; an unsigned declaration submitted by Alabaster’s

counsel, David Eric Kassab, claiming that Plaintiffs would incur no costs under their

contingent fee agreement in litigation but would have to pay up front fees and costs

if they arbitrate the matter; and Alabaster’s contingent fee agreement with Kassab.

Although Alabaster provided some evidence of the cost of arbitration, it failed

to provide the cost of litigation or the amount of his claim. See Holt Tex., Ltd v.

Rubio, No. 13-19-00206-CV, 2020 WL 1181253, at *5 (Tex. App.—Corpus ChristiEdinburg Mar. 12, 2020, no pet.) (mem. op.) (determining party failed to meet his

burden to prove unconscionability and explaining that “he has not provided any

comparison of [the arbitration estimate] to the expected cost of litigation or the

amount of his claim[]”). Alabaster simply stated that under their contingent fee

agreement with their attorneys, the attorneys would not advance the costs of

arbitration but would advance the litigation costs. Stating that they would not have

to pay the costs of litigation initially did not mean there were no costs associated

with litigation at all. It simply meant that Alabaster would not have to pay litigation

costs immediately, as its attorney would advance them. Yet Alabaster failed to

provide evidence analyzing the total costs to litigate compared with the costs to

arbitrate. We cannot assess whether the estimated arbitration fees are what prevented

it from pursuing its rights without knowing how that amount compares to the overall

expense of litigating versus arbitrating and Alabaster’s ability to afford the litigation

but not arbitration. See Shattenkirk, 669 S.W.3d at 397; see also Rafiei, 687 S.W.3d

at 732 (citations omitted). In other words, even though Alabaster provided evidence

of the arbitration costs and that it could not afford them, it failed to provide evidence

of the total litigation costs compared to those arbitration costs. “[A]bsent concrete

evidence that the increased cost associated with arbitration, compared to litigation,

is what forecloses” Alabaster from pursuing its claims, Alabaster “cannot show that

those costs are what make the expense of arbitrating ‘cost prohibitive.’” Shattenkirk,

669 S.W.3d at 397; see also Rafiei, 687 S.W.3d at 732 (citations omitted).

Alabaster provided evidence that it asked for a hardship waiver of the costs

almost two years after the trial court signed the order compelling arbitration, but

such AAA hardship waivers were discretionary. The AAA Rules as attached by

Alabaster to its Motion to Reconsider state, “The AAA may, in the event of extreme

hardship on the part of any party, defer or reduce the administrative fees.” Thus,

other options were available that Alabaster could have pursued to reduce costs

without a complete waiver like requesting a reduction or deferral. See Rafiei, 687

S.W.3d at 732; (reasoning that party “presented no evidence that he sought a deferral

or reduction of the administrative fees or an agreement to proceed with a single

arbitrator[]”); Abdin v. LGI Homes-Texas, LLC, No. 14-25-00705-CV, 2026 WL

2054218, at *5 (Tex. App.—Houston [14th Dist.] July 16, 2026, no pet. h.) (mem.

op.) (determining party opposing arbitration did not meet burden of showing

unconscionability where it failed to show it actually pursued available procedures

for reducing costs). Alabaster did not ask for the costs to be deferred or reduced as

the rule allows. It also did not explain why it did not do so or how, if it successfully

sought and obtained a deferral of those costs, that would be any different than having

its attorney advance the litigation costs.

Based on this record, we conclude that Alabaster failed to meet the heavy

burden of establishing unconscionability where it (1) did not provide evidence of the

total costs of litigation compared to the total costs it provided to arbitrate and (2)

failed to provide evidence that it exhausted available procedures of reducing or

deferring costs. See Rafiei, 687 S.W.3d at 732; Shattenkirk, 669 S.W.3d at 395;

Olshan, 328 S.W.3d at 893. Accordingly, the trial court did not err by denying

Alabaster’s Motion to Reconsider on unconscionability grounds.

Alabaster next contends that the arbitration provision is unenforceable

because there was no meeting of the minds on the arbitration agreement’s essential

terms. 6 Specifically, Alabaster argues that following language in the arbitration

provision conflicts:

ANY DISPUTES ARISING UNDER OR RELATING TO THE

INTERPRETATION, ENFORCEMENT OR ALLEGED

BREACH OF ANY LEGAL, FIDUCIARY, OR OTHER DUTIES

UNDER THIS AGREEMENT, AND ANY DISPUTES ARISING

UNDER OR RELATING TO THE NEGOTIATION OR

FORMATION OF THIS AGREEMENT, SHALL BE

SUBMITTED TO BINDING ARBITRATION IN BEAUMONT,

TEXAS, UNDER THE AUSPICES OF THE JUDICIAL

ARBITRATION & MEDIATION SERVICES, INC., 1010

LAMAR, SUITE 1350, HOUSTON, TEXAS.

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, AND NOT IN TRIAL. I

SPECIFICALLY WAIVE MY RIGHT TO HAVE SUCH A

DISPUTE CONSIDERED BY COURT AND JURY AND

CONSENT TO THE SUBMISSION OF ANY SUCH DISPUTE TO

AN ARBITRATOR SELECTED BY AN ATTORNEY AND

MYSELF OR SELECTED BY THE COURT. SUCH

ARBITRATION PROCEEDINGS SHALL BE CONDUCTED IN

BEAUMONT, TEXAS AND IN ACCORDANCE WITH THE

RULES AND PROCEDURES ADOPTED BY THE AMERICAN

ARBITRATION ASSOCIATION. ANY SUCH DISPUTE SHALL

BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS.

We note that Alabaster did not make the argument there was no meeting of the minds in its Motion to Reconsider. Alabaster first made this argument in its Response to BCA’s Motion to Dismiss. Nevertheless, because it was an argument raised in the trial court, we conclude that this complaint was preserved, so we reach the merits. See Tex. R. App. P. 33.1.

Alabaster argues that the provision requires the parties to submit to arbitration with

both JAMS and the AAA, which is “a completely separate forum with completely

different rules.” Alabaster asserts that these are conflicting clauses that cannot be

read together without nullifying one or the other essential terms.

Arbitration agreements are interpreted under traditional contract

principles. The plain language controls, [w]ords must be construed in

the context in which they are used, and we will examine and consider

the entire writing in an effort to harmonize and give effect to all the

provisions of the contract so that none will be rendered meaningless.

No single provision taken alone will be given controlling effect; rather,

all the provisions must be considered with reference to the whole

instrument.

In re Whataburger Rests. LLC, 645 S.W.3d 188, 194–95 (Tex. 2022) (orig.

proceeding) (internal quotations and citation omitted).

Even if we assume these clauses that Alabaster points to address essential

terms of the agreement, a careful reading shows that they can be harmonized. See id.

Unlike the case cited by Alabaster in its brief, Links Construction v. United

Structures of America, No. 14-20-00723-CV, 2022 WL 1112831 (Tex. App.—

Houston [14th Dist.] Apr. 14, 2022, no pet.) (mem. op.), the clauses at issue in this

provision did not require arbitration in one place and litigation in another. Instead,

here, the parties consistently show their agreement to submit to binding arbitration

with use of the phrases “shall be submitted to binding arbitration” and “shall be

resolved by binding arbitration.” Likewise, the agreement to arbitrate consistently

indicates that it shall occur in Beaumont, Texas. Also, contrary to Alabaster’s

assertion, the arbitration agreement does not require the parties to arbitrate with

JAMS in one place and the AAA in another, rather the language shows that the

matter shall be submitted to binding arbitration “under the auspices of JAMS” “in

accordance with the commercial arbitration rules then in effect with the [AAA],”

and “in accordance with the rules and procedures adopted by the [AAA].” The

agreement does not define “auspices,” but the ordinary definition is “kindly

patronage and guidance.” Auspices, merriam-webster.com, https://merriamwebster.com/dictionary/auspices (last visited Aug. 28, 2026). In other words, the

language requires the matter to be arbitrated under the “patronage” of or with JAMS

in Beaumont, Texas applying the AAA’s rules and procedures. Here, we can

harmonize the various clauses in the arbitration agreement, reading them together so

they are all given effect. See In re Whataburger Rests. LLC, 645 S.W.3d at 194–95

Alabaster has not pointed us to anything in the record that would show JAMS would

preclude the parties from applying AAA rules where the parties agreed to do so.

We conclude the clauses in the arbitration provision can be harmonized in the

context of the Agreement as a whole. See id. The trial court did not err by denying

its Motion to Reconsider based on conflicting provisions such that there was no

meeting of the minds. We overrule issue two.

IV. ISSUE THREE: DISMISSAL FOR WANT OF PROSECUTION

In issue three, Appellants complain that the trial court abused its discretion by

dismissing its claims without prejudice. They argue that since they never failed to

appear for trial, Rule 165a could not be used to dismiss their case.

A. Additional Relevant Background

The record shows that on December 3, 2020, Alabaster’s counsel sent

correspondence to the court and acknowledged it received the trial court’s Notice of

Dismissal issued on September 28, 2020, in which it advised the parties the case

would be listed on the Dismissal Docket for December 4, 2020. Alabaster advised

the trial court that the matter was pending in arbitration and explained that the delay

stemmed from its attempt to accumulate funds to pay for the arbitration proceedings.

It attached a copy of its arbitration complaint that it filed on November 6, 2020, with

the AAA.

In September 2022, BCA filed its Motion to Dismiss with Prejudice under

Texas Rule of Civil Procedure 165a. BCA contended that the case languished on the

docket since after the trial court ordered the parties to arbitrate the matter, which

occurred in June 2018. They argued that Alabaster waited until November 2020 to

file a demand for arbitration. In September 2021, an arbitrator was appointed, and

on December 14, 2021, the arbitrator submitted an invoice for her services to be split

between the parties. BCA asserted that despite paying its portion, Alabaster failed to

pay its share, and on December 27, 2021, the AAA warned the parties that the matter

may be dismissed if the invoice was not paid by January 31, 2022. Alabaster still

failed to pay, and on March 9, 2022, the AAA notified the parties that it was

dismissing the matter.

After granting BCA’s Motion to Dismiss, on February 9, 2023, the trial court

vacated its original dismissal order and reinstated the case after Alabaster filed a

Motion for New Trial and to Reinstate complaining it did not get notice of a hearing.

Once reinstated, BCA reset its Motion to Dismiss to be heard on March 23, 2023, at

which time the parties were expected to argue the merits of why the matter should

be retained or dismissed. On March 16, 2023, Alabaster filed Plaintiffs’ Response

to Defendants’ Motion to Dismiss with Prejudice, in essence contending they should

not have to arbitrate, as it was unconscionable since it could not afford to do so and

argued that the arbitration provision contained conflicting clauses showing there was

no meeting of the minds. It supported its Response with Sheffield’s previous

affidavit explaining his financial situation and inability to pay along with a new

affidavit from Sheffield stating that his financial situation was unchanged. It also

argued that under Rule 165a, the trial court could not dismiss the case for want of

prosecution “with prejudice” as requested by BCA, since it was not a determination

on the merits.

B. Standard of Review and Applicable Law

We review a trial court’s ruling on a motion to dismiss for want of prosecution

“under a clear abuse of discretion standard[.]” MacGregor v. Rich, 941 S.W.2d 74,

75 (Tex. 1997) (citation omitted); see El-Khalidi v. Arabian Am. Dev. Co., No. 09-13-00394-CV, 2014 WL 2152101, at *2 (Tex. App.—Beaumont May 22, 2014, pet.

denied) (mem. op.). A trial court abuses its discretion when it acts arbitrarily or

unreasonably, or when it acts without reference to guiding rules and

principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.

1985); El-Khalidi, 2014 WL 2152101, at *2. In determining whether the trial court

abused its discretion by dismissing a case for want of prosecution, “the central issue

is whether the plaintiffs exercised reasonable diligence.” MacGregor, 941 S.W.2d

at 75 (citing Veterans’ Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976)).

A trial court’s authority to dismiss for want of prosecution comes from two

sources: (1) Rule 165a of the Texas Rules of Civil Procedure, and (2) the court’s

inherent power. Villareal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.

1999); Williams, 543 S.W.2d at 90. “A trial court may dismiss under Rule 165a on

‘failure of any party seeking affirmative relief to appear for any hearing or trial of

which the party had notice,’ [] or when a case is ‘not disposed of within the time

standards promulgated by the Supreme Court[.]’” Villareal, 994 S.W.2d at 630

(quoting Tex. R. Civ. P. 165a(1), (2)). Rule 6.1(a) of the Rules of Judicial

Administration provides that civil jury cases should be disposed of within eighteen

months and nonjury cases within twelve months. Tex. R. Jud. Admin. 6.1(a); see

Villareal, 994 S.W.2d at 630 n.3. The common law also vests trial courts with the

inherent power to dismiss independently of the rules of procedure if a plaintiff fails

to prosecute his or her case with due diligence. Villareal, 994 S.W.2d at

630; Williams, 543 S.W.2d at 90.

C. Analysis

Appellants contend that the trial court could not dismiss the case under Rule

165a, because they never failed to appear. This ignores that Rule 165a(2) permits

dismissal of cases “not disposed of within time standards promulgated by the

Supreme Court” as outlined in the Rules of Judicial Administration, which would be

eighteen months for jury trial cases and twelve months for non-jury cases. See Tex.

R. Civ. P. 165a(2); Tex. R. Jud. Admin. 6.1(a). BCA’s Motion to Dismiss was not

limited to Rule 165a(1) which governs dismissal for failure to appear. See Tex. R.

Civ. P. 165a(1). Rather, in September 2022, BCA argued in its Motion to Dismiss

that the case had been on file since 2017, and that “[e]very opportunity has been

provided for Plaintiffs to proceed,” but they “failed to do so.” The substance of the

Rule 165a Motion to Dismiss indicates that Rule 165a(2) applies, and Appellants

failed to dispose of their case with the applicable timeframe. See id. 165a(2); Tex.

R. Jud. Admin. 6.1(a); see also Villareal, 994 S.W.2d at 630 (citations omitted).

The record shows that despite Alabaster’s assertions of diligence, the trial

court could have reasonably concluded otherwise. Alabaster did not dispose of its

case within the timeframes noted above, as it filed the case in April 2017 and it

remained on the docket until April 2023. See Tex. R. Civ. P. 165a(2); Tex. R. Jud.

Admin. 6.1(a); see also Villareal, 994 S.W.2d at 630 (citations omitted). After being

ordered to arbitrate the matter, Alabaster did nothing for over a year, when it filed a

Motion to Reconsider. After the trial court denied its Motion to Reconsider,

Alabaster waited until November 6, 2020, another ten months, before filing a

complaint with the AAA. Alabaster only filed the complaint after it received the trial

court’s September 28, 2020, notice that the case was being placed on the dismissal

docket. Once Alabaster filed its arbitration complaint, the complaint languished with

the AAA for more than a year, when the AAA told the parties that if each failed to

pay $2,587.50, the matter may be terminated. When Alabaster failed to pay, in

March 2022, the AAA administratively closed the matter.

The record also establishes that after dismissing the case with prejudice, once

Alabaster complained in its Motion for New Trial that it had not received notice or

a hearing, the trial court held a hearing on the Motion for New Trial, vacated its

order and reinstated the case. This reflects that the trial court did not act arbitrarily

or unreasonably, instead it followed guiding principles by reinstating the case,

allowing for proper notice, and permitting Alabaster to file a Response before

signing its final order dismissing the case without prejudice. See MacGregor, 941

S.W.2d at 75; Downer, 701 S.W.2d at 241–42; El-Khalidi, 2014 WL 2152101, at

*2; see also Tex. R. Civ. P. 165a(2). We hold the trial court did not clearly abuse its

discretion by dismissing this case for want of prosecution under Rule 165a. See

MacGregor, 941 S.W.2d at 75; El-Khalidi, 2014 WL 2152101, at *2; see also Tex.

R. Civ. P. 165a(2). We overrule issue three.

CONCLUSION

Having overruled Appellants’ issues, we affirm the trial court’s judgment.

AFFIRMED.

W. SCOTT GOLEMON

Chief Justice

Submitted on May 20, 2026

Opinion Delivered September 24, 2026

Before Golemon, C.J., Johnson, Wright, and Chambers, JJ.

Alabaster, Inc. and John Sheffield v. Brent W. Coon, Brent W. Coon, P.C. D/B/A Brent Coon & Associates and Eric Newell

Authorities cited

Opinion · public domain