Court of Appeals of Texas, Fourth District, San Antonio
the 166th Judicial District Court, Bexar County, Texas Trial
Court No. 2016-CI-13172 Honorable Michael E. Mery, Judge
Sitting: Karen Angelini, Justice Marialyn Barnard, Justice
Irene Rios, Justice.
Shelby Brittingham appeals the trial court's order
denying his motion to compel arbitration of the direct claims
asserted against him by Rodrigo Mirabent. The sole issue presented on appeal is
whether Mirabent's direct claims are within the scope of
an arbitration clause contained in a Company Agreement
governing the ownership and management of Beyond Contact
Centers, LLC ("Beyond Contact"), a Texas limited
liability company. Because we agree with the trial court that
Mirabent's direct claims are not within the scope of the
arbitration clause, we affirm the trial court's order.
and Procedural Background
determining whether claims fall within the scope of an
arbitration clause, we focus on the factual allegations in
the plaintiff's pleading. In re Rubiola, 334
S.W.3d 220, 225 (Tex. 2011); Amateur Athletic Union of
the U.S., Inc. v. Bray, 499 S.W.3d 96, 102 (Tex.
App.-San Antonio 2016, no pet.). Therefore, the following
facts are based on a summary of the factual allegations
contained in Mirabent's original petition.
October of 2011, Mirabent and his brother purchased a Mexican
entity known as Calling Solutions Mexico. Mirabent and his
brother organized Beyond Contact to hold and operate Calling
April of 2012, Mirabent and his brother sold Brittingham 33%
of the membership interests in Beyond Contact, and Mirabent,
his brother, and Brittingham executed the Company Agreement
governing the entity's ownership and
management. Around the same time, an
entity named Fusion Contact Center, S de R.L. de C.V. was
formed in Mexico, and the assets of Calling Solutions Mexico
were transferred from Beyond Contact to Fusion. Beyond
Contact owned 99% of Fusion, and Mirabent owned the other 1%.
Also at that time, Mirabent was the chief operating officer
and a managing member of Beyond Contact, Mirabent's
brother was the chief executive officer and a managing member
of Beyond Contact, and Brittingham was the president of
of 2013, a dispute arose. Based on representations made by
Brittingham and Juan Carlos de Luna, an employee of Beyond
Contact, Mirabent and his brother agreed to be removed as
managers of Beyond Contact and Fusion and to a restructuring
involving Beyond Contact, Fusion, and two other entities.
First, Brittingham represented that Mirabent would be
retained as a consultant by Beyond Contact for six months
following the restructuring and receive United States dollars
equivalent to 80, 000 Mexican pesos per month. In addition,
Brittingham represented any liability of Mirabent to American
Express would be released or, if American Express would not
agree to a release, then Beyond Contact and/or Fusion would
satisfy the outstanding amount owed to American
to the restructuring, Beyond Contact was owned in the
following percentages: (1) Brittingham - 67.22%; (2) de Luna
- 12.34%; (3) Mirabent - 8.5%; (4) Mirabent's brother -
8.5%; and (5) other lenders - 2.94%. Mirabent's liability
to American Express, however, was not released or satisfied,
and Mirabent was not paid under the terms of the consulting
agreement. In addition, Brittingham and de Luna caused
substantially all of the assets of Beyond Contact to be
conveyed to another entity wholly owned by them.
August 8, 2016, Mirabent sued Beyond Contact, Brittingham,
and de Luna asserting claims for statutory fraud, common law
fraud, breach of contract, and breach of fiduciary duty.
Brittingham filed a motion to compel arbitration of the
claims asserting the claims were within the scope of the
arbitration clause of the Company Agreement which provided:
11.01 Submission of Disputes to Arbitration.
(a) This Article 11 shall apply to any of the following types
of disputes (each a "Dispute"):
(i) any dispute as to fair market value under Sec.
3.03(c)(ii)(B) or 11.04;
(ii) any dispute as to any accounting or tax issue under this