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Kreit v. Brewer & Pritchard, P.C.

Court of Appeals of Texas, Fourteenth District

June 8, 2017


         On Appeal from the 281st District Court Harris County, Texas Trial Court Cause No. 2015-35549

          Panel consists of Chief Justice Frost and Justices Brown and Jewell.


          Kevin Jewell Justice.

         Brothers Camil and Samir Kreit appeal the trial court's final judgment confirming an arbitration award in favor of Brewer & Pritchard, P.C. for fees due under a contract for legal services. Camil and Samir argue the trial court erred in confirming, rather than vacating, the award because they did not agree to arbitrate disputes with Brewer & Pritchard, P.C. in their individual capacities. For the reasons stated below, we affirm the judgment.


         Camil and Samir are medical doctors and representatives of Cleveland Imaging and Surgical Hospital, L.L.C. d/b/a Doctors Diagnostic Hospital (CISH). In July 2014, CISH was involved in several ongoing lawsuits. In one of the lawsuits, Camil and Samir were named as individual defendants. Camil and Samir met with attorney Mark Brewer of Brewer & Pritchard[1] to discuss obtaining legal services.

         A key dispute between the parties to this appeal is whether Brewer & Pritchard was retained to provide legal services for CISH, or whether the firm was retained to provide services for Camil and Samir in their individual capacities. On this point, the record reveals the following facts. Brewer & Pritchard drafted several proposed fee agreements to cover the services provided. In one, Brewer & Pritchard contemplated representing CISH, Camil, and Samir and drafted a fee agreement that listed the clients as CISH, Camil, Samir, and "other individual investors."[2] Brewer & Pritchard maintains that, after receiving additional information regarding the ongoing litigation, it questioned whether Camil and Samir had the authority to enter into an agreement for CISH, and thus only agreed to provide services to Camil and Samir in their individual capacities. Brewer & Pritchard drafted another fee agreement, which listed the clients as Camil and Samir and defined the scope of services as "general corporate services." This agreement-the July 31, 2014 fee agreement-is the only agreement purporting to bear the signatures of Camil, Samir, and Brewer & Pritchard.

         Camil and Samir contend that they only intended to obtain representation on behalf of CISH, and that they never signed an agreement for individual representation. They allege irregularities with the July 31, 2014 fee agreement and contend that Brewer & Pritchard co-mingled individual pages from separate proposals to create a "Frankenstein" contract to which Camil and Samir never agreed as a whole. All of the proposed fee agreements, including the July 31, 2014 fee agreement, contained arbitration clauses.[3]

         In July and August 2014, Brewer & Pritchard performed general corporate legal services and sent an invoice addressed to Camil and Samir for the services rendered. Camil and Samir declined to pay Brewer & Pritchard and instead told the law firm it must look to CISH for payment. Brewer & Pritchard then initiated an arbitration proceeding against Camil and Samir with the American Arbitration Association pursuant to the arbitration clause in the July 31, 2014 fee agreement. Brewer & Pritchard alleged that it provided legal services to Camil and Samir pursuant to the agreement and that Camil and Samir breached the agreement by failing to pay. Brewer & Pritchard sought a total of approximately $40, 000 in attorney's fees and $1, 175 in expenses.

         Camil and Samir both appeared pro se in the arbitration. Samir filed a special appearance and objection, claiming that the arbitrator lacked jurisdiction because Samir did not sign the July 31, 2014 fee agreement in his individual capacity and thus the agreement's arbitration clause was unenforceable against him individually. Samir alleged that his initials were not on the document, [4] one page of the document contained no initials at all, and his signature appeared on a page separate from the page containing the signature of Brewer & Pritchard and Camil.

         Camil did not join in Samir's special appearance and objection in the arbitration proceeding. On appeal, Camil claims he presented arguments challenging the arbitrator's jurisdiction in the arbitration proceeding, but the record does not contain any of his pleadings or filings from the arbitration demonstrating that he raised an arbitrability challenge based upon his position that he did not sign an arbitration agreement in his individual capacity.[5] Neither Camil nor Samir filed a motion to stay the arbitration proceeding under Texas Civil Practice and Remedies Code section 171.023.

         The arbitrator conducted the arbitration as "documents-only" in accordance with the arbitration clause in the agreement. The arbitrator then issued an award in which he found that Camil and Samir both signed the July 31, 2014 fee agreement; the agreement, including the arbitration provision, bound them in their individual capacities; the agreement was not void, invalid or otherwise unenforceable; the dispute fell within the scope of the arbitration agreement; and Camil and Samir breached the agreement by failing to pay the fees. The arbitrator awarded Brewer & Pritchard its past due attorney's fees, interest on the fees, costs, and attorney's fees incurred in the arbitration.

         Brewer & Pritchard then filed the underlying action to confirm the arbitration award. Camil timely filed a verified "motion to quash or set aside motion for confirmation, " which the trial court broadly interpreted as a motion to vacate the award. Camil asserted numerous arguments in the motion to vacate and attached documents in support of the motion. As relevant here, Camil asserted that no arbitration agreement existed as to him individually and, further, the arbitrator exceeded his authority by failing to "pass the case on to a court of competent jurisdiction."

         On the day the trial court heard Brewer & Pritchard's motion to confirm the award, Samir filed his own motion to vacate the arbitration award. He attached an affidavit supporting his statement of the facts and several documents. Just as his brother Camil had asserted in his motion to vacate, Samir asserted, among other things, that no arbitration agreement existed as to Samir individually and that the trial court had the duty to determine whether a binding arbitration agreement existed in the first instance.

         At the hearing on the motion to confirm, the trial court heard argument from Camil and Samir regarding their position that they did not sign the fee agreement in their individual capacities. The trial court allowed Camil and Samir to submit exhibits, including the various contemplated draft fee agreements. The trial court took the motion to confirm and the motion to vacate filed by Camil under advisement. Three days later the trial court denied Camil's motion to vacate the award[6] and signed an order confirming the arbitration award and granting final judgment in favor of Brewer & Pritchard.

         Camil and Samir both filed timely motions to set aside the judgment or alternative motions for new trial. In their post-judgment motions, Camil and Samir argued that the trial court must hold an evidentiary hearing regarding whether an agreement to arbitrate existed. The trial court held another oral hearing on the post- judgment motions, after which the court denied Camil and Samir's post-judgment motions. This appeal followed.


         Camil and Samir challenge the trial court's judgment confirming the arbitration award and denying their motions to vacate. Their core point is that they did not agree to arbitrate their dispute because they signed no agreement with Brewer & Pritchard in their individual capacities. Based on that fundamental proposition, they say the trial court was required to decide the dispute's arbitrability before the arbitration award issued. Because the trial court did not do so, appellants contend that either the award is invalid as a matter of law or the arbitrator exceeded his authority by issuing an award against them when no arbitration agreement existed. In either instance, according to Camil and Samir, the trial court should have vacated the award. For the reasons that follow, we overrule appellants' issues.

         A.Standard of ...

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