DISSENTING OPINION No. 04-99-00781-CV ANCO INSURANCE SERVICES OF HOUSTON, INC. d/b/a Wood/Menna & Company, Appellant v. Ron ROMERO d/b/a Physicians, Surgeons and Hospitals Professional Services, Appellee From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 99-CI-04605 Honorable David Berchelmann, Jr., Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Dissenting opinion by: Sarah B. Duncan, Justice

Sitting: Phil Hardberger, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: March 29, 2000

It is undisputed that the Agreement expressly referred to Wood/Menna & Company as a party; the Agreement was signed by Jay Menna of behalf of Wood/Menna & Company; and, at the time the agreement was signed, the only entity authorized to do business and doing business as Wood/Menna & Company was ANCO Insurance Services of Houston, Inc. Under these circumstances, ANCO Insurance Services, Inc. is entitled to invoke the Agreement's arbitration clause. Cf., e.g., Carlin v. 3V Inc., 928 S.W.2d 291, 294-97 (Tex. App.--Houston [14th Dist.] 1996, no writ) (holding that appellee was bound by the arbitration clause contained in an agreement signed by its assignor when all of appellee's claims arose out of and were directly related to the agreement).

The majority avoids this result in reliance on two facts: Jay Menna Insurance Agency, Inc., operated under the name of Wood/Menna & Co. at the time Romero filed his first lawsuit, and the Agency continued in existence after its dissolution for purposes of defending and settling lawsuits against it. See Tex. Bus. Corp. Act Ann. art. 7.12 (Vernon Supp. 1999). But neither fact is relevant. To determine who or what was bound by the Agreement we must look to the state of affairs existing when the Agreement was signed, and the sole effect of the Agency's continued existence in this context was to permit Menna to settle Romero's lawsuit against, and sign the Agreement on behalf of, the Agency. Certainly it does not alter the dispositive facts--Wood/Menna & Company is expressly named in and a signatory to the Agreement; at the time the Agreement was signed, the only legal entity authorized to do business and doing business as Wood/Menna & Company was ANCO Insurance Services, Inc.; and, therefore, the only entity authorized to invoke the arbitration agreement on behalf of Wood/Menna & Company is ANCO. The trial court thus erred in denying ANCO's motion to compel arbitration.

I respectfully dissent.

Sarah B. Duncan, Justice

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