Docket Call. Collin County Young Lawyers December*2013 Volume 15, Issue 3

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1 Docket Call Collin County Young Lawyers December*2013 Volume 15, Issue 3 A Word from the President By Mitch Little It is the season to be thankful, and, boy, are we thankful for our members and volunteers. We just completed our first staffing of the Allen Legal Clinic at the First United Methodist Church as an organization, and we look forward to many more. We are constantly looking for new ways to serve our membership, the bar, and the community. Our Pumpkin Patch event was a really great opportunity to meet our members kids and spend time together as families. We intend to make this an annual event for CCYLA families. District Judge Cynthia Wheless s speech at the October Breakfast with the Judges was excellent and timely, as Plano West High School made national news with its I m With Shea campaign against bullying. This issue is an area of emphasis statewide through the Texas Young Lawyers Association, and we are looking for ways to raise awareness of the issue with our young lawyers and the bar in general. In February, we look forward to having District Judge Ray Wheless for this breakfast, too. As the holidays approach, of course we intend to celebrate. This year s Holiday Luncheon is approaching on December 6 at Sauce on the Square s Grotto. Pizza, bellinis, lawyers can t lose. This event is always a lot of fun, and we really hope you ll come out and celebrate with us. As always, if you are a new attorney and would like to get to know other lawyers in the area, this is the friendliest way to come and do it. Please come by and let us get a chance to meet you. Annual CCYLA Holiday Luncheon, December 6, at Sauce on the Square s Grotto, 11:00 a.m.! As a reminder, our annual Judicial Reception is scheduled for February 26, 2014, featuring Baylor President Judge Kenneth Starr. We covet your sponsorships, and we hope that you will participate. If you are interesting in being a sponsor for this event, please do not hesitate to contact me directly. This is our organization s signature event, and we are anxious to have full attendance and to present scholarships to graduating Collin County high school seniors. Those scholarship applications are ready to go out, and we always have a competitive pool of students who could use them. Last month s Happy Hour at The Irish Rover in Frisco was a success. Watch for more updates soon! CCYLA Board of Directors Mitch Little, President Mitch.Little@solidcounsel.com Rebecca Armstrong, President-Elect rarmstrong@koonsfuller.com Dana Stewart, Vice-President danajstewart@gmail.com Kelly Kleist, Treasurer kek@crb-law.com Leslie Sanderson, Secretary Leslie.Sanderson@solidcounsel.com Jason Duff, Immediate Past President jasonaduff@hotmail.com Sarah R. Duff, Newsletter Director srduff@thedufflawfirm.com Greg Beane, Director gbeane@vernerbrumley.com Brandon Kulwicki, Director brandon@stewartstrong.com Emily A. Miskel, Director emiskel@koonsfuller.com Nicolas Mosser, Director ndmosser@mosserlaw.com Jim Mueller, Director jmueller@vernerbrumley.com Chandler Winslow, Director chandlerwinslow@gmail.com Kristy Piazza Blanchard, TYLA President Zeke Fortenberry, TYLA Director, District 4

2 Recap: CCYLA s Pumpkin Patch Party CCYLA thanks all those who came out to the Big Orange Pumpkin Farm!

3 Arbitration Agreements Binding on Non-Signatories By Audra Mayberry Parties to a contract can accept its terms and provisions by executing the document with the stroke of a pen. Generally, a party is bound by the terms of a contract it signs, even if it did not read the agreement. 1 Agreements containing arbitration clauses are no exception. Courts favor arbitration as a means for resolving disputes outside the normal judicial process, and parties increasingly include arbitration provisions in their business agreements to reflect the trend. With the prevalence of arbitration clauses comes the need to be watchful for arbitration agreements that may be binding on parties who did not even sign them. Both Federal and Texas state courts have recognized that a non-signatory to an arbitration agreement may be bound by the obligation to arbitrate through principles of contract law and agency. 2 Courts, not arbitrators, decide gateway matters related to arbitration, including whether an arbitration agreement is binding on a non-signatory. 3 Federal courts have recognized 6 situations in which non-signatories to an arbitration agreement may be bound to arbitrate: 1) arbitration agreement is incorporated by reference in another contract; 2) subsequent conduct indicates a nonsignatory assumed the obligation to arbitrate; 3) arbitration agreement was signed by a non-signatory s agent; 4) signatory and non-signatory are alter egos of each other; 5) estoppel is warranted by the nonsignatory s conduct or claims; and 6) non-signatory is a third-party beneficiary of an arbitration agreement. 4 The Texas Supreme Court has recognized that arbitration agreements can also be binding on non-signatories whose claims are derivative of the rights of a signatory 5 and non-signatories the contract designates as parties. 6 Most often, arbitration agreements have been held to be binding on non-signatories through an estoppel theory. Under direct benefits estoppel, a non-signatory may be bound by an arbitration provision if he pursues a claim arising from the contract or seeks or obtains substantial benefits from the contract during its performance. 7 Similarly, a signatory has been compelled to arbitrate under an equitable estoppel theory when its right to recover against a non-signatory and its damages depend on a contract containing an arbitration clause. 8 As the Texas Supreme Court has said, A party cannot both have his contract and defeat it too. 9 Be aware of these scenarios when considering whether your clients may be compelled to arbitrate under agreements they did not sign. *Audra Mayberry is an associate at Scheef & Stone in Frisco, Texas. 1 In re McKinney, 167 S.W.3d 833, 835 (Tex. 2005). 2 In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 738 (Tex. 2005). 3 In re Weekly Homes, L.P., 180 S.W.3d 127, 130 (Tex. 2005). 4 In re Kellogg, 166 S.W.3d at In re Labatt Food Serv., L.P., 279 S.W.3d 640, 642 (Tex. 2009). 6 In re Rubiola, 334 S.W.3d 220 (Tex. 2011). 7 Weekly, 180 S.W.3d at ; Eagle Fabricators, Inc. v. Rakowitz, 344 S.W.3d 414, 420 (Tex. App. Houston [14th Dist.] 2011, no pet.). 8 Meyer v. WMCO-GP, LLC, 211 S.W.3d 302, 307 (Tex. 2006). 9 Weekly. 180 S.W.3d at 135.

4 Holiday Luncheon December 6, 2013, 11:00 am-1:00 pm The Grotto, Historic Downtown McKinney Square Calendar of Events Judicial Reception February 26, 2014, 6:00 pm Rick s Chophouse, Historic Downtown McKinney Square Stay tuned for more info on upcoming Breakfast with the Bench, CLE events, and our new website!

5 CCYLA Member Spotlight: Brian Bagley Brian Bagley hails from Alabama but broke his home state s mold when he transferred from the beloved Auburn University to attend the University of North Texas to obtain his bachelor s degree. It must have been the friendly Texas people and the ever-changing weather that convinced him to stay and attend law school at Texas Wesleyan School of Law (now Texas A&M law school). While in law school, Brian served as the Notes and Comments Editor for the Law Review and also acted as a High School Law Day Coordinator. As a solo practitioner at The Law Office of Brian Bagley, PLLC, Brian focuses his practice on family and criminal law. In addition to running his own practice, you might find Brian working with the Collin County Texas Lawyers for Texas Veterans. When not in the courtroom, Brian is likely fishing or boating (preferably out of cell phone range) and tries never to vacation in the same location twice. He and his wife, Kristina, have two Morkies (yes, Morkies), one St. Bernard, and one alley cat.