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Brittingham v. Mirabent

Court of Appeals of Texas, Fourth District, San Antonio

July 5, 2017

John Shelby BRITTINGHAM, Appellant
v.
Rodrigo MIRABENT, Appellee

         From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2016-CI-13172 Honorable Michael E. Mery, Judge Presiding

          Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Irene Rios, Justice.

          MEMORANDUM OPINION.

          Irene Rios, Justice.

         John Shelby Brittingham appeals the trial court's order denying his motion to compel arbitration of the direct claims asserted against him by Rodrigo Mirabent.[1] 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.

         Factual and Procedural Background

         In 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.[2]

         In 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 Solutions Mexico.

         In 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.[3] 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 Beyond Contact.

         In June 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 Express.[4]

         Subsequent 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.

         On 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 ...

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