                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00271-CV


VILLA DE LEON CONDOMINIUMS,                                       APPELLANTS
LLC, PATTEN SALES AND
MARKETING, LLC, AND BILL
BRIDGES, JR.

                                       V.

MICHAEL STEWART AND CARRIE                                         APPELLEES
STEWART


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          FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 153-269987-14

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              CONCURRING MEMORANDUM OPINION 1

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      I agree with the majority opinion’s conclusion that appellee Carrie Stewart

was bound to arbitrate her claims regarding the purchase of Unit 130, which fell

under the scope of the arbitration clause contained in the Contract that she

      1
      See Tex. R. App. P. 47.4.
signed. However, because appellee Michael Stewart did not sign the Contract

containing the arbitration clause, I believe this court must address whether the

arbitration clause may be enforced against a nonsignatory. Because I believe

the clause may be enforced against Michael even though he did not sign the

Contract containing the arbitration clause, I concur in the judgment.

      The majority opinion correctly recites that we review the trial court’s denial

of a motion to compel arbitration for an abuse of discretion but that we review de

novo a trial court’s determination regarding whether a valid agreement to

arbitrate exists. 2 See In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex.

2009) (orig. proceeding); J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227

(Tex. 2003).    Further, we must uphold the trial court’s decision if there is

sufficient evidence to support the denial on any legal theory raised in the trial

court because the trial court did not enter findings of fact or conclusions of law to


      2
        The arbitration clause at issue does not specify whether the Federal
Arbitration Act or the Texas General Arbitration Act applies. Appellants did not
specify whether the FAA or the TGAA applied nor did they assert that the TGAA
conflicts with the FAA in any material respect or that the contract affected
interstate commerce. See 9 U.S.C.A. § 2 (West 2009) (providing FAA governs
contracts relating to interstate commerce); IKON Office Solutions, Inc. v. Eifert, 2
S.W.3d 688, 696 (Tex. App.—Houston [14th Dist.] 1999, orig. proceeding & no
pet.) (holding burden is on party seeking to compel arbitration to show FAA
applies). Thus, whether the TGAA or the FAA applies need not be addressed
and cases decided under the FAA or the TGAA may be cited interchangeably.
See Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 56 n.10 (Tex. 2008);
Zaporozhets v. Ct. Appointed Receiver in Cause No. 12-DCV-199496, No. 14-
14-00143-CV, 2014 WL 5148151, at *2 (Tex. App.—Houston [14th Dist.] Oct. 14,
2014, no pet.) (mem. op.); Osornia v. AmeriMex Motor & Controls, Inc., 367
S.W.3d 707, 711 (Tex. App.—Houston [14th Dist.] 2012, no pet.).


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explain its denial of the motion to compel. Shamrock Foods Co. v. Munn &

Assocs., Ltd., 392 S.W.3d 839, 844 (Tex. App.—Texarkana 2013, no pet.); In re

Weeks Marine, Inc., 242 S.W.3d 849, 854 (Tex. App.—Houston [14th Dist.] 2007,

orig. proceeding [mand. denied]). To enforce an arbitration clause against a

signatory, the party seeking to compel arbitration must establish (1) a valid

arbitration agreement exists and (2) the claims asserted fall within the scope of

the agreement. In re Dillard Dep’t Stores, Inc., 186 S.W.3d 514, 515 (Tex. 2006)

(orig. proceeding). With a nonsignatory, the party seeking to compel arbitration

must establish that an accepted theory applies allowing the movant to bind the

nonsignatory to the arbitration clause. See In re Kellogg Brown & Root, 166

S.W.3d 732, 739 (Tex. 2005) (orig. proceeding); Glassell Producing Co. v. Jared

Res., Ltd., 422 S.W.3d 68, 80–81 (Tex. App.—Texarkana 2014, no pet.) (op. on

reh’g); CNOOC Se. Asia Ltd. v. Paladin Res. (SUNDA) Ltd., 222 S.W.3d 889,

895 (Tex. App.—Dallas 2007, pets. denied) (op. on reh’g).            If the movant

establishes that a valid arbitration agreement governs the dispute, the burden

shifts to the party opposing arbitration to prove his or her defenses to arbitration.

In re AdvancePCS Health L.P., 172 S.W.3d 603, 607 (Tex. 2005) (orig.

proceeding). If the opposing party fails to do so, the trial court has no discretion

and must compel arbitration. See In re FirstMerit Bank, N.A., 52 S.W.3d 749,

754 (Tex. 2001) (orig. proceeding).

      Again, the majority correctly determines that (1) as to Carrie, the Contract,

letter agreement, First Addendum, and Second Addendum, viewed as a whole,


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contained an enforceable arbitration agreement and (2) Carrie, as a signatory to

each document, was bound by the enforceable arbitration clause contained in the

Contract. It is important to note, however, that by pleading tort claims, Carrie

cannot avoid this enforceable arbitration clause because Appellants’ alleged

liability arose solely from the contract or must be determined by reference to it.

See In re Weekley Homes, L.P., 180 S.W.3d 127, 131–32 (Tex. 2005) (orig.

proceeding). Thus, the trial court erred by denying Appellants’ motion to compel

arbitration as to Carrie.

      But Michael was not a signatory to the Contract containing the arbitration

clause and only initialed selected portions of the Contract. Although Carrie is

bound to the enforceable arbitration agreement contained in the Contract as a

signatory, I cannot conclude that Michael is bound to the arbitration clause in the

Contract as a nonsignatory merely because he signed subsequent agreements

and addendums, none of which contained an arbitration clause. Thus, Michael

may be compelled to arbitrate his claims only if no other legal basis supports the

trial court’s denial, i.e., only if Appellants established that the clause bound

Michael to arbitrate under an established theory governing nonsignatories.

Michael asserted in the trial court that he did not sign the Contract and, therefore,

could not be bound by the arbitration clause.        Thus, I will address whether

Appellants established a theory binding Michael as a nonsignatory. 3

      3
       Indeed, the trial court indicated at the hearing that Michael’s nonsignatory
status was an important factor in the denial.


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      As recited previously, a party seeking to compel a nonsignatory to arbitrate

his claims must establish: (1) a valid arbitration agreement exists binding the

nonsignatory under an established contractual theory and (2) the claims at issue

fall within the scope of the agreement. See In re Rubiola, 334 S.W.3d 220, 223

(Tex. 2011) (orig. proceeding); Osornia, 367 S.W.3d at 711. The presumptions

favoring arbitration do not apply to a court’s determination as to whether the first

showing has been made. See Kellogg, 166 S.W.3d at 737–38. Instead, because

arbitration is contractual, a court must first decide whether an agreement was

reached, applying state-law principles of contract interpretation. In re Poly–Am.,

L.P., 262 S.W.3d 337, 347–48 (Tex. 2008) (orig. proceeding); Am. Med. Techs.,

Inc. v. Miller, 149 S.W.3d 265, 273 (Tex. App.—Houston [14th Dist.] 2004, orig.

proceeding & no pet.).

      Here, no one disputes on appeal that the Stewarts’ claims fell within the

scope of the arbitration clause. Thus, the only question is whether Appellants

established that the arbitration agreement in the Contract bound Michael as a

nonsignatory to arbitrate his claims related to the purchase of Unit 130.

Appellants argued in the trial court that the arbitration clause was binding on

Michael as a nonsignatory under the doctrine of direct-benefits estoppel because

he (1) brought claims in a lawsuit seeking direct benefits from the contract

containing the arbitration clause and (2) deliberately sought and obtained

substantial benefits from the contract itself outside of litigation. Indeed, direct-

benefits estoppel applies to “non-signatories who, during the life of the contract,


                                         5
have embraced the contract despite their non-signatory status but then, during

litigation, attempt to repudiate the arbitration clause in the contract.” Hellenic Inv.

Fund, Inc. v. Det Norske Veritas, 464 F.3d 514, 517–18 (5th Cir. 2006). See

generally MaxEn Capital, LLC v. Sutherland, No. H-08-3590, 2009 WL 936895,

at *5 (S.D. Tex. Apr. 3, 2009) (collecting cases enforcing arbitration and forum-

selection clauses against nonsignatories based on estoppel).

      By bringing claims against Appellants directly related to the contractual

purchase of Unit 130 and that necessarily must be determined by reference to

the duties arising under that contract, Michael is seeking a benefit from a contract

he did not sign. This is the classic scenario under which nonsignatories are held

to the dictates of an arbitration clause or other type of forum-selection clause

under direct-benefits estoppel. See Carlile Bancshares, Inc. v. Armstrong, Nos.

02-14-00014-CV, 02-14-00018-CV, 2014 WL 3891658, at *7–8 (Tex. App.—Fort

Worth Aug. 7, 2014, no pet.) (mem. op.). Similarly, Michael obtained direct and

substantial benefits from the Contract, as amended by the letter agreement and

the First and Second Addendums. As Appellants argue, Michael lived in Unit

130, received a special warranty deed to Unit 130, and received a home warranty

policy. By seeking a benefit from the Contract through his claims arising under

the Contract and by receiving benefits under the Contract, Michael is estopped

from avoiding enforcement of the arbitration clause contained in the Contract he

did not sign. See, e.g., Hellenic, 464 F.3d at 520; Weekley Homes, 180 S.W.3d

at 131–33.


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      Because no legal theory supports the trial court’s denial of Appellants’

motion to compel arbitration as to Carrie and Michael, the trial court erred. I

concur in the majority opinion’s judgment reversing the trial court’s denial and

remanding to the trial court for further, consistent proceedings.

                                                    /s/ Lee Gabriel

                                                    LEE GABRIEL
                                                    JUSTICE

DELIVERED: February 19, 2015




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