ALABASTER INC v. COON (2026)

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 “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 Sea-Brat 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.

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 Oliver-Parrott 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.

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.—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 Christi-Edinburg 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.

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://merriam-webster.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.

FOOTNOTES

1.   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.

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

3.   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.

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

5.   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).

6.   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.

W. SCOTT GOLEMON, Chief Justice