Full Opinion

In The Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-24-00314-CV ________________ ALABASTER, INC. AND JOHN SHEFFIELD, Appellants V. BRENT W. COON AND BRENT W. COON, P.C. D/B/A BRENT COON & ASSOCIATES, AND ERIC NEWELL, Appellees ________________________________________________________________________ On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E-199,958 ________________________________________________________________________ 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 1 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 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. 2 “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 3 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 4 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 5 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 6 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. 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. 7 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 8 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 9 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 10 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 11 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 12 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 13 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. 14 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. 15 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 16 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 17 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 18 (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 19 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). 20 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 21 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 22 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. 4 Although Appellants repeatedly mention that Charles suffered from dementia at the time, they do not seek to avoid the Agreement on that basis. 23 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 24 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 deter