Mediation and Arbitration

3 May 2013

Texas Supreme Court enforces arbitration clause in a trust

Today, the Texas Supreme Court released an anticipated opinion in Rachal v. Reitz. In the opinion, the Court upheld an arbitration clause in a trust dispute, requiring the trust beneficiaries to bring their claims against the trustee in arbitration instead of court. Arbitration clauses are typically only enforceable against those who sign a contract containing the clause.  However, the Court decided that the beneficiaries were bound by the clause under the doctrine of direct benefits estoppel, stating: [A] beneficiary who attempts to enforce rights that would not exist without the trust manifests her assent to the trust’s arbitration clause. For example, a […]
2 January 2013

Happy 2013

Texas Probate Litigation will be five years old in March.  While I understand that estate, trust, and life insurance disputes are not topics that make for compelling reading for the average (sane) person, for those needing help in such situations, obtaining information is very important. In 2012, I had the pleasure of representing some very fine people in need of help. From all the way down in Colombia, to Houston, Austin, Waco, Dallas, Fort Worth, and all the way up to Minnesota.  Most of their cases were resolved during the discovery stage, with one will contest settled just before trial. If 2012 was different […]
16 January 2009

Citizens Bank v. Bryce: Trustee waived arbitration

Texas courts have eagerly enforced arbitration clauses, despite their typical unfairness to consumers and small businesses.  The Texas Supreme Court opened the door somewhat to challenging arbitration clauses when it overturned a large arbitration award against mega donor Bob Perry. In Citizens National Bank v. Bryce, the Tyler Court of Appeals relied on the Perry decision and found that the bank, sued as trustee for breach of fiduciary duty, waited too long to compel arbitration.  Specifically, the decision noted that the bank had participated in and sought discovery for twenty months prior to seeking to compel arbitration. It appeared that […]
11 April 2008

Mandatory arbitration

Arbitration has long been a feature of certain types of litigation.  I’ve seen mandatory arbitration clauses most extensively utilized in securities (client/broker), construction, employment, and general commercial disputes.  In my personal experience – which is shared by many attorneys on both sides of the bar – the oft-touted cost and time saving advantages of arbitration are highly overrated.  Filing and arbitrator fees can run into six figures in some cases, especially when a panel consists of three arbitrators. And that is apart from the attorney fees and expenses. In some cases, the expenses of arbitration prevent a plaintiff from pursuing […]