                              Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                       No. 04-12-00376-CV

                                      James A. WINSLOW,
                                            Appellant

                                            v.
                                  D.R. HORTON AMERICA'S
                            D.R. HORTON AMERICA’S BUILDER,
                                          Appellee

                     From the County Court at Law No. 8, Bexar County, Texas
                                     Trial Court No. 372383
                         The Honorable Liza Rodriguez, Judge Presiding

Opinion by:      Luz Elena D. Chapa, Justice

Sitting:         Karen Angelini, Justice
                 Marialyn Barnard, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: May 29, 2013

AFFIRMED

           This appeal arises from a county court at law’s de novo review of James A. Winslow’s

claim after the claim was dismissed by a small claims court. Winslow asserts that the trial court

erred in dismissing his claim seeking damages for D. R. Horton America’s Builder’s failure to

repair alleged roof defects and damage D. R. Horton allegedly caused to the base flashing of his

home.       The trial court dismissed the claim because paragraph 17 of the Earnest Money

Contract/Escrow Instructions entered into between Winslow and D. R. Horton mandated a

dispute resolution procedure applicable to every dispute between the parties occurring before and
                                                                                                    04-12-00376-CV


after the closing of Winslow’s purchase of his home. The contract required the parties to submit

their claim to a mediator 1 and then to binding arbitration. The contract further stated that in

making the agreement, the parties “are waiving their rights to FILE A LAWSUIT relating to any

dispute between them.” Although Winslow acknowledges this contractual provision, the crux of

Winslow’s complaint on appeal appears to be that he has the option to pursue his claim in small

claims court under: (1) the AAA’s Home Construction Arbitration Rules and Mediation

Procedures; (2) the AAA’s Supplementary Procedures for Consumer-Related Disputes; and (3)

the AAA’s Consumer Due Process Protocol. 2

         With regard to the AAA’s Home Construction Arbitration Rules, the parties’ contract did

not expressly provide for arbitration by the AAA under those rules. 3                       Instead the contract

provided for the arbitration to “be administered and conducted by the American Arbitration

Association (“AAA”) in accordance with … THE RULES OF THE AAA.” Because the contract

1
  In his briefing, Winslow makes several references to the small claims court’s order referring the parties to
mediation with Bexar County’s Dispute Resolution Center as being contrary to the parties’ agreement. The order
before this court, however, is the trial court’s order dismissing the claim because paragraph 17 of the parties’
agreement required them to arbitrate their claims. The trial court’s order does not contain any ruling pertaining to
mediation.
2
  Apart from his belief that he had the option to pursue his claim in small claims court, the basis for Winslow’s
opposition to arbitration is unclear. See Robert G. Bone, Party Rulemaking: Making Procedural Rules Through
Party Choice, 90 TEX. L. REV. 1329, 1366 (2012) (“while the evidence is mixed, there are empirical studies that
show consumers fare reasonably well in some important types of consumer arbitration. Reputable organizations like
the American Arbitration Association (AAA) have incentives to provide reasonably fair arbitration procedures in
order to preserve a reputation for evenhandedness.”); see also Sarah Rudolph Cole, Of Babies and Bathwater: The
Arbitration Fairness Act and the Supreme Court’s Recent Arbitration Jurisprudence, 48 Hous. L. Rev. 457, 473
(Fall 2011) (“in the vast majority of consumer arbitrations, consumers pay fewer fees than they would in court,
obtain results faster than they would in court, and win greater relief than they would likely win in court”). Although
Winslow makes reference to unconscionability in his briefing, we note that Winslow did not assert the affirmative
defense of unconscionability or otherwise present argument to the trial court that the arbitration provision was
unconscionable. See Corbindale, L.P. v. Kotts Capital Holdings Ltd. P’ship, 316 S.W.3d 191, 196 (Tex. App.—
Houston [14th Dist.] 2010, no pet.) (noting allegation that arbitration provision is unconscionable must be
affirmatively pled or it is waived and cannot be considered for first time on appeal); Parks v. Developers Sur. &
Indem. Co., 302 S.W.3d 920, 923-24 (Tex. App.—Dallas 2010, no pet.) (same); see also EZ Pawn Corp. v. Mancias,
934 S.W.3d 87, 90 (Tex. 1996) (“there is nothing per se unconscionable about arbitration agreements”).
3
  See Home Construction and Arbitration Rules and Mediation Procedures ARB-1(a) available at
http://www.adr.org/aaa/faces/rules/searchrules/rulesdetail?doc=ADRSTG_004225&_afrLoop=430376365178628&
_afrWindowMode=0&_afrWindowId=xxlyqohd0_1#%40%3F_afrWindowId%3Dxxlyqohd0_1%26_afrLoop%3D4
30376365178628%26doc%3DADRSTG_004225%26_afrWindowMode%3D0%26_adf.ctrl-
state%3Dxxlyqohd0_57.


                                                        -2-
                                                                                                  04-12-00376-CV


did not specifically refer to the Home Construction Arbitration Rules, the dispute between

Winslow and D. R. Horton is governed under the AAA’s Commercial Arbitration Rules and

Mediation Procedures. 4

        With regard to the Consumer-Related Disputes Supplementary Procedures, the AAA has

“the discretion to apply or not to apply the Supplementary Procedures and the parties will be able

to bring any disputes concerning the application or non-application to the attention of the

arbitrator.” 5 If the arbitrator or the AAA decides to apply the Supplementary Procedures,

“’[p]arties can still take their claims to a small claims court.” 6 Therefore, before Winslow could

proceed in small claims court under the Supplementary Procedures, either the arbitrator or the

AAA must first decide that those procedures are applicable to Winslow’s claim.

        Finally, the Consumer Due Process Protocol is “a set of privately developed fairness

standards used by the AAA in administering consumer arbitrations.” Peter B. Rutledge &

4
  See id. (introductory note); see also Commercial Arbitration Rules and Mediation Procedures R-1 available at
http://www.adr.org/aaa/faces/rules/searchrules/rulesdetail?doc=ADRSTG_004130&_afrLoop=430815005468032&
_afrWindowMode=0&_afrWindowId=15a3ngv1yu_1#%40%3F_afrWindowId%3D15a3ngv1yu_1%26_afrLoop%3
D430815005468032%26doc%3DADRSTG_004130%26_afrWindowMode%3D0%26_adf.ctrl-
state%3D15a3ngv1yu_57 (“The parties shall be deemed to have made these rules a part of their arbitration
agreement whenever they have provided for arbitration by the American Arbitration Association (hereinafter AAA)
under its Commercial Arbitration Rules or for arbitration by the AAA of a domestic commercial dispute without
specifying particular rules.”)
5
  Commercial        Arbitration     Rules      and      Mediation      Procedures      R-1*      available       at:
http://www.adr.org/aaa/faces/rules/searchrules/rulesdetail?doc=ADRSTG_004130&_afrLoop=430815005468032&
_afrWindowMode=0&_afrWindowId=15a3ngv1yu_1#%40%3F_afrWindowId%3D15a3ngv1yu_1%26_afrLoop%3
D430815005468032%26doc%3DADRSTG_004130%26_afrWindowMode%3D0%26_adf.ctrl-
state%3D15a3ngv1yu_57; Consumer-Related Disputes Supplementary Procedures C-1(a) available at:
http://www.adr.org/aaa/faces/rules/searchrules/rulesdetail?doc=ADRSTG_004127&_afrLoop=432717224408458&
_afrWindowMode=0&_afrWindowId=12pqqsz5d5_50#%40%3F_afrWindowId%3D12pqqsz5d5_50%26_afrLoop
%3D432717224408458%26doc%3DADRSTG_004127%26_afrWindowMode%3D0%26_adf.ctrl-
state%3D12pqqsz5d5_106. Because the Supplementary Procedures apply to the “purchase of standardized,
consumable goods or services,” and the “product or service must be for personal or household use,” the arbitrator or
the AAA would also be required to determine whether the Supplementary Procedures are applicable to the purchase
of a house. See id. at C-1(a); see also Amy J. Schmitz, Legislating in the Light: Considering Empirical Data in
Crafting Arbitration Reforms, 15 HARV. NEGOT. L. REV. 115, 140 n.137 (Spring 2010) (noting residential
construction cases are excluded from the Supplementary Procedures).
6
  Consumer-Related          Disputes      Supplementary         Procedures        C-1(d)       available         at:
http://www.adr.org/aaa/faces/rules/searchrules/rulesdetail?doc=ADRSTG_004127&_afrLoop=432717224408458&
_afrWindowMode=0&_afrWindowId=12pqqsz5d5_50#%40%3F_afrWindowId%3D12pqqsz5d5_50%26_afrLoop
%3D432717224408458%26doc%3DADRSTG_004127%26_afrWindowMode%3D0%26_adf.ctrl-
state%3D12pqqsz5d5_106.

                                                       -3-
                                                                                      04-12-00376-CV


Christopher R. Drahozal, Contract and Choice, 2013 B.Y.U. L. REV. 1, 31 (2013). Although

these protocols are self-regulated and not mandatory, the AAA has been active in conducting

protocol compliance review and refusing to administer cases that involve a protocol violation.

Anjanette H. Raymond, It Is Time the Law Begins to Protect Consumers from Significantly One-

Sided Arbitration Clauses Within Contracts of Adhesion, 91 NEB. L. REV. 666, 694 (2013).

However, whether the AAA will “refuse to conduct arbitration” because the contract fails to

comply with the protocols “is a determination that [must] be left to the arbitrator in the first

instance.” Estep v. World Fin. Corp. of Ill., 735 F. Supp. 2d 1028, 1034 (C.D. Ill. 2010). “In the

event that arbitration is denied based on failure to comply with the Consumer Due Process

Protocol,” it would appear that Winslow’s claim “may be referred back to” the small claims

court. Id. Therefore, similar to the Supplementary Procedures, the AAA must first deny an

arbitration claim based on a contract’s failure to comply with the Consumer Due Process

Protocol before a party would be permitted to proceed in small claims court.

       Because the AAA rules and protocols relied upon by Winslow to file his claim in small

claims court are inapplicable or require the arbitrator or the AAA to first exercise discretion in

determining the applicability of the rules or protocols, the trial court did not err in granting D. R.

Horton’s motion to dismiss. Accordingly, the trial court’s order is affirmed.

                                                  Luz Elena D. Chapa, Justice




                                                 -4-
