Opinion issued December 13, 2016




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-15-01073-CV
                            ———————————
                        PATRICIA ROCHA, Appellant
                                        V.
   MARKS TRANSPORT, INC. D/B/A AUTONATION TOYOTA GULF
                    FREEWAY, Appellee


                    On Appeal from the 215th District Court
                             Harris County, Texas
                       Trial Court Case No. 2015-34045


                                  OPINION

      Plaintiff-appellant Patricia Rocha sued defendant-appellee Marks Transport,

Inc. d/b/a AutoNation Toyota Gulf Freeway (“the dealership”) over injuries she

allegedly sustained when she slipped and fell in the waiting area of the dealership.

This is an appeal from the trial court’s final judgment granting the dealership’s
motion to compel binding arbitration of Rocha’s premises liability claim and

dismissing Rocha’s suit.

      Plaintiff argues that there was no basis for the trial court compel arbitration

because it was her husband, rather than her, that signed a contract with defendant

agreeing to arbitrate certain disputes. She acknowledges that an arbitration clause

can be enforced against a non-signatory through the theory of direct-benefit

estoppel, but contends that this theory does not apply here, and that, even if it did,

her claims fall outside the scope of the arbitration agreement.

      The dealership concedes that it was error for the trial court to dismiss

Rocha’s claims, but argues that we are otherwise without jurisdiction to reach the

merits of Rocha’s appeal. Alternatively, it argues that the trial court’s order

compelling arbitration was correct.

      We vacate the portion of the trial court’s judgment dismissing Rocha’s

claims, reverse the trial court’s order compelling arbitration of Rocha’s claims, and

remand to the trial court for further proceedings.

                                 JURISDICTION

      The dealership concedes that the portion of the trial court’s order dismissing

Rocha’s claims is incorrect. But, in both its appellee’s brief and in a separate

motion to dismiss filed here, it argues that “[w]hile this Court has jurisdiction to

review dismissal of the case in favor of [dealership], the Court does not have


                                          2
jurisdiction to review the order compelling arbitration under this Court’s well-

established precedent.” The dealership cites a string of cases in support, but relies

primarily on this Court’s decision in Brooks v. Pep Boys Automotive Supercenters,

104 S.W.3d 656 (Tex. App.—Houston [1st Dist.] 2003, no pet).

      The arbitration clause in the contract between Rocha’s husband and the

dealership is governed by the Federal Arbitration Act (FAA).               Brooks also

involved an arbitration clause governed by the FAA and presented a situation

indistinguishable from the one in the case. 104 S.W.3d at 658–59. In Brooks, as

here, the trial court (1) compelled arbitration of the plaintiff’s claims against the

defendant, and (2) dismissed the plaintiffs’ case. Brooks, 104 S.W.3d at 658.

      On appeal, we noted that, “to the extent that the trial court dismissed [the

plaintiff’s] entire case, the trial court’s order is reviewable as an appeal from a final

judgment.” Id. at 659. We then concluded such dismissal was erroneous, because

“[i]f a trial court concludes that the parties have established an agreement to

arbitrate under the FAA and that the claims to be arbitrated are within the scope of

the agreement, a Texas trial court ‘has no discretion but to compel arbitration and

stay its proceedings pending arbitration.’” Id. at 659–60 (quoting Cantella v.

Goodwin, 924 S.W.2d 943, 944 (Tex. 1996) (emphasis added)). Accordingly, we

vacated the portion of the trial court’s judgment that dismissed the plaintiff’s case.




                                           3
      Pointing out the interlocutory nature of the order compelling arbitration, we

refused, however, to address the plaintiff’s arguments that the trial court’s

compelling arbitration was erroneous.         Id. at 660–61. (“An order compelling

arbitration under the FAA is neither a final disposition, nor expressly authorized by

any of the provisions of the Civil Practice and Remedies Code that permit

interlocutory appeals.”); see also J.C. Viramontes, Inc. v. Novoa, No. 08-08-

00342-CV, 2009 WL 224963, at *1 (Tex. App.—El Paso Jan. 30, 2009, no pet.)

(mem. op.) (“An order compelling arbitration is not a final order, nor is it an order

from which an interlocutory appeal can be taken.”). Instead, we vacated the

portion of the trial court’s order dismissing the plaintiff’s claims and dismissed his

appeal “to the extent he challenges the portion of the trial court’s order that

compelled arbitration.” Brooks, 104 S.W.3d at 661. The dealership argues that,

under Brooks we should vacate the portion of the court’s judgment dismissing

Rocha’s claims and remand without considering whether the trial court’s

compelling arbitration was erroneous.

      While Brooks io on point and has not been expressly overruled, it is at odds

with a more recent Texas Supreme Court opinion not cited by either party or by

cases following Brooks.     In Childers v. Advanced Foundation Repair, L.P., the

supreme court reversed a court of appeals’s judgment dismissing an appeal for lack

of jurisdiction. 193 S.W.3d 897, 897–98 (Tex. 2006) (per curiam). As in this case


                                          4
and in Brooks, the trial court in that case had (1) compelled arbitration of the

plaintiff’s claims under the FAA, and (2) dismissed the plaintiff’s claims. Id. at

897. The court of appeals held it was without jurisdiction over an appeal from the

trial court’s judgment, characterizing the trial court’s judgment as an interlocutory

order reviewable only by mandamus. Childers v. Advanced Foundation Repairs,

221 S.W.3d 90, 93 (Tex. App.—Corpus Christi 2005, rev’d by 193 S.W.3d 897

(Tex. 2006). The supreme court reversed the court of appeals’ judgment, holding

that the trial court’s order compelling arbitration and dismissing the plaintiff’s

claims was final, and “remand[ing] to the court of appeals to consider the merits”

of the plaintiff’s appeal. Childers, 193 S.W.3d at 898. On remand, the court of

appeals addressed the merits of the plaintiff’s argument that the trial court erred in

compelling arbitration and affirmed the trial court’s order. Childers v. Advanced

Foundation Repairs, L.P., No. 13-04-00193-CV, 2007 WL 2019755, at *3 (Tex.

App.—Corpus Christi July 12, 2007, no pet.) (mem. op.).

      Childers and the cases following it are controlling here. Thus, while we

agree with both parties that it was error for the trial court to dismiss Rocha’s

claims, we deny the dealership’s motion to dismiss Rocha’s challenge to the trial

court’s order compelling arbitration. See, e.g., In re Gulf Expl., LLC, 289 S.W.3d

836, 838 (Tex. 2009) (orig. proceeding) (“We too have adopted this rule: “Courts

may review an order compelling arbitration if the order also dismisses the


                                          5
underlying litigation so it is final rather than interlocutory.”); Small v. Specialty

Contractors, Inc., 310 S.W.3d 639, 642 (Tex. App.—Dallas 2010, no pet.)

(“Courts may review an order compelling arbitration if the order also dismisses the

entire case and is therefore a final, rather than interlocutory, order.”).

                                   ARBITRATION

      Rocha’s June 12, 2015 Original Petition recites the following as the facts

giving rise to her premises liability claim against the dealership:

      Plaintiff was a customer getting her car serviced at AutoNation
      Toyota Gulf Freeway, located at 12111 Gulf Freeway, Building B,
      Houston, Harris County, Texas. Plaintiff was in the waiting area, on
      her way to the ladies bathroom when she slipped and fell due to a
      liquid substance on the floor. Said premises at all times material
      hereto was owned, operated and/or maintained by Defendants. As a
      result of this incident, Plaintiff suffered personal injuries.

      In the dealership’s answer, it states: “Upon information and belief, an

Arbitration Agreement exists between Plaintiff and Defendant and the claims

asserted by Plaintiff are within the scope of that agreement.” The dealership also

filed a motion to compel arbitration and for stay or dismissal of litigation. In that

motion, the dealership contended that Rocha’s claims were subject to arbitration

through an arbitration clause contained within the sales and finance contract

entered into between Rocha’s husband, Jose, and the dealership when Jose

purchased a vehicle from the dealership. That clause provides:




                                            6
      1. EITHER YOU OR WE MAY CHOOSE TO HAVE ANY
         DISPUTE BETWEEN US DECIDED BY ARBITRATION AND
         NOT IN COURT OR BY JURY TRIAL.
      2. IF A DISPUTE IS ARBITRATED, YOU WILL GIVE UP YOUR
         RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE
         OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY
         HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS
         ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL
         ARBITRATIONS.
      3. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION
         ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT,
         AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE
         IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.
      Any claim or dispute, whether in contract, tort, statute or otherwise
      (including the interpretation and scope of this Arbitration Clause, and
      the arbitrability of the claim or dispute), between you and us or our
      employees, agents, successors or assigns, which arises out of or
      relates to your credit application, purchase or condition of this vehicle,
      this contract or any resulting transaction or relationship (including any
      such relationship with third parties who do not sign this contract)
      shall, at your or our election, be resolved by neutral, binding
      arbitration and not a court action.
      ....
      Any arbitration under this Arbitration Clause shall be governed by the
      Federal Arbitration Act (9 U.S.C. § 1 et. al.) and not by any state law
      concerning arbitration
      ....

      The dealership’s motion was accompanied by the dealership’s General

Manager’s affidavit.    It authenticated the attached copy of the sales contract

between Jose and the dealership as a business record, stated that he was

“personally acquainted with the facts herein stated and they are true and correct”

and that:

                                          7
      4. AutoNation Toyota is a retailer of new and used vehicles in
         Houston, Texas. On or about June 1 of 2012, AutoNation Toyota
         sold the Vehicle to Plaintiffs husband, which transaction is set
         forth in the Contract. In connection with the Contract, the parties
         executed an Arbitration Agreement. The Arbitration Agreement
         specifically stales that the transaction is subject to the Federal
         Arbitration Act (“FAA”). Plaintiff is not a signatory to the
         Arbitration Agreement.
      5. Pursuant to the Arbitration Agreement, Jose Rocha, Jr. agreed
         “Either you or we may choose to have any dispute between us
         decided by arbitration and not in court or by-jury trial.” Pursuant to
         the Arbitration Agreement, claims subject to arbitration include
         “Any claim or dispute, whether in contract, tort, statute or
         otherwise (including the interpretation and scope of this
         Arbitration Clause, and the arbitrability of the claim or dispute),
         between you and us or our employees, agents, successors or
         assigns, which arises out of or relates to your credit application,
         purchase or condition of this vehicle, this contract or any resulting
         transaction or relationship (including any such relationship with
         third parties who do not sign this contract) shall, at your or our
         election, be resolved by neutral, binding arbitration and not a court
         action.
      6. On or about June 12, 2015, Plaintiff filed a lawsuit against
         AutoNation Toyota containing claims that arose from transactions
         or relationships that resulted from Jose Rocha, Jr.’s purchase of the
         Vehicle and the Contract. These claims specifically fall within the
         defined claims under the Arbitration Agreement.

      Rocha responded to the dealership’s motion to compel arbitration by arguing

that (1) her claims do not fall within the scope of the arbitration agreement, and (2)

direct-benefit estoppel does not apply to claims not covered by an arbitration

agreement.

      The dealership responded by producing additional evidence: (1) a recording

of Rocha referring to her husband’s vehicle as “my car,” and (2) a receipt

                                          8
identifying Jose as the customer having work performed on his vehicle on the day

of Rocha’s slip-and-fall injury and indicating it was warranty-covered work on a

broken seat belt. The trial court granted the dealership’s motion to compel, and

dismissed Rocha’s claims.

      A. Standard of Review and Applicable Law

      “Generally, we review a trial court’s decision to grant or deny a motion to

compel arbitration under an abuse of discretion standard.” Enter. Field Servs., LLC

v. TOC–Rocky Mountain, Inc., 405 S.W.3d 767, 773 (Tex. App.—Houston [1st

Dist.] 2013, pet. denied). Under this standard, we defer to a trial court’s factual

determinations if they are supported by evidence, but we review a trial court’s

legal determinations de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643

(Tex. 2009) (orig. proceeding). Whether a valid arbitration agreement exists and

whether the arbitration agreement is ambiguous are questions of law that we

review de novo. In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006)

(orig. proceeding).

      A party seeking to compel arbitration must establish (1) the existence of a

valid, enforceable arbitration agreement and (2) that the claims at issue fall within

that agreement’s scope. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737

(Tex. 2005) (orig. proceeding). If the movant establishes that an arbitration

agreement governs the dispute, the burden shifts to the party opposing arbitration


                                         9
to establish a defense to the arbitration agreement. In re Provine, 312 S.W.3d 824,

829 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding) (citing In re

Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999) (orig.

proceeding)). Once the movant establishes a valid arbitration agreement

encompassing the claims at issue, a trial court has no discretion to deny the motion

to compel arbitration unless the opposing party proves a defense to arbitration. Id.

(citing In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753–54 (Tex. 2001) (orig.

Proceeding)).

      Because state and federal policies favor arbitration, courts must resolve any

doubts about an arbitration agreement’s scope in favor of arbitration. In re

FirstMerit Bank, 52 S.W.3d at 753. To be subject to arbitration, the “allegations

need only be factually intertwined with arbitrable claims or otherwise touch upon

the subject matter of the agreement containing the arbitration provision.” In re B.P.

America Prod. Co., 97 S.W.3d 366, 371 (Tex. App.—Houston [14th Dist.] 2003,

orig. proceeding).

      “Generally, only signatories to an arbitration agreement are bound by the

agreement.” Elgohary v. Herrera, 405 S.W.3d 785, 790 (Tex. App.—Houston [1st

Dist.] 2013, no pet.). “While non-signatories to an arbitration agreement can be

bound to arbitrate under principles of contract and agency law, such issues—

dealing as they do with non-signatories—are gateway ‘issues of arbitrability’ that


                                         10
the courts are primarily responsible for deciding—not the arbitrator.” Id. at 791

(citing Roe v. Ladymon, 318 S.W.3d 502, 515 (Tex. App.—Dallas 2010, no pet.);

Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S. Ct. 588, 592

(2002)).

      The doctrine of direct-benefits estoppel requires a non-signatory to arbitrate

a claim “if it seeks, through the claim, to derive a direct benefit from the contract

containing the arbitration provision.” In re Vesta Ins. Grp., Inc., 192 S.W.3d 759,

761 (Tex. 2006) (orig. proceeding) (citing In re Kellogg Brown & Root, Inc., 166

S.W.3d 732, 741 (Tex.2005)). “While the boundaries of direct-benefits estoppel

are not always clear, non-signatories generally must arbitrate claims if liability

arises from a contract with an arbitration clause, but not if liability arises from

general obligations imposed by law.” Weekley, 180 S.W.3d at 130, 134. The

doctrine also applies if a party “deliberately seeks and obtains substantial benefits

from the contract” containing the arbitration clause. Id. at 132.

      B. Analysis

      In arguing that the trial court’s granting of its motion to compel arbitration

was correct, the dealership relies exclusively on the supreme court’s decision in

Weekley. In that case, addressing an issue of first impression, the supreme court

held that—on the facts presented—a non-signatory to a contract containing an




                                         11
arbitration clause could be compelled through the theory of direct-benefits estoppel

to arbitrate a personal-injury claim. Weekley, 180 S.W.3d at 129.

      In Weekley, Forsting (a 78-year-old widower with “an assortment of health

problems”) contracted with Weekley to construct a 4,000 square-foot house for the

purpose of living in the house with his only child, Von Bargen, and her husband

and three children. Id. It was Von Bargen and her husband, rather than Forsting,

that paid the deposit, signed the letter of intent as “purchasers,” selected the floor

plan, negotiated issues with Weekly before and after construction, and made the

custom design choices.       Id.    Only Forsting, however, executed the various

financing and closing documents, including a Real Estate Purchase Agreement

containing an arbitration clause:

      Any claim, dispute or cause of action between Purchaser and Seller. . .
      , whether sounding in contract, tort, or otherwise, shall be resolved by
      binding arbitration. . . . . Such claims, disputes or causes of action
      include, but are not limited to, those arising out of or relating to. . . the
      design, construction, preparation, maintenance or repair of the
      Property.
Id.

      Although Forsting signed the purchase agreement in his individual capacity,

his intent was to purchase the property as agent for a family trust for which he and

Von Bargen and were the only trustees, and Von Bargen was the only beneficiary.

Id. The purpose of the trust was to effectuate the transfer of the property to Von



                                           12
Bargen upon Forsting’s death. Id. Forsting transferred the property into the family

trust shortly after the purchase. Id.

      According to a petition filed against Weekly by Forsting, Von Bargen, and

the family trust, numerous problems arose with the house after completion. Id.

When the family moved out of the home so Weekley could perform some repairs,

Von Bargen is the one who requested and received reimbursement. Id. She

acknowledged handling “almost . . . all matters related to the house, the problems

and the warranty work and even the negotiations.” Id. In their petition, Forsting

and the family trust asserted claims for negligence, breach of contract, statutory

violations, and breach of warranty. Id. Von Bargen sued only for personal injuries,

alleging Weekley’s negligent repairs caused her to develop asthma. Id.

      The trial court granted Weekley’s motion to compel arbitration under the

FAA as to claims by Forsting and the family trust, but denied it as to Von Bargen’s

personal-injury claim because she was not a signatory to the purchase contract

containing the arbitration agreement. Id. The supreme court granted Weekley’s

request for mandamus relief, holding that the trial court erred in failing to compel

arbitration of Von Bargen’s claim. Id. at 129–30.

      The supreme court noted that Von Bargen advocated for a rule that would

bind non-signatories to a contract with an arbitration clause only if the non-

signatory brought contract claims; in contrast, Weekly argued for a broad


                                        13
application to any claim that “arises from or relates to” the contract containing the

arbitration clause.   Id. at 131.   The supreme court noted it had adopted an

“approach between these two extremes, holding that a nonparty may be compelled

to arbitrate ‘if it seeks, through the claim, to derive a direct benefit from the

contract containing the arbitration provisions.’” Id. (quoting Kellogg, 166 S.W.3d

at 741).

      Applying this standard, the court held that holding Von Bargen to the

contract’s arbitration obligation was warranted on these facts:

      Here, Von Bargen has not merely resided in the home. Claiming the
      authority of the Purchase Agreement, she directed how Weekley
      should construct many of its features, repeatedly demanded extensive
      repairs to “our home,” personally requested and received financial
      reimbursement for expenses “I incurred” while those repairs were
      made, and conducted settlement negotiations with Weekley
      (apparently never consummated) about moving the family to a new
      home. Having obtained these substantial actions from Weekley by
      demanding compliance with provisions of the contract, Von Bargen
      cannot equitably object to the arbitration clause attached to them.
      In addition to these benefits, Forsting and the Trust have sued
      Weekley on claims which are explicitly based on the contract. Under
      Texas law, a suit involving a trust generally must be brought by or
      against the trustee, and can be binding on the beneficiaries whether
      they join it or not. Although Von Bargen did not purport to sue as
      either trustee or beneficiary, she was both, and any recovery will inure
      to her direct benefit as the sole beneficiary and equitable titleholder of
      the home. As one Texas court has noted, if a trustee’s agreement to
      arbitrate can be avoided by simply having the beneficiaries bring suit,
      “the strong state policy favoring arbitration would be effectively
      thwarted.”
      ....


                                         14
       Direct-benefits estoppel requires a colorable claim to the benefits; a
       meddlesome stranger cannot compel arbitration by merely pleading a
       claim that quotes someone else’s contract. . . . . [W]e agree with the
       federal courts that when a nonparty consistently and knowingly insists
       that others treat it as a party, it cannot later “turn[ ] its back on the
       portions of the contract, such as an arbitration clause, that it finds
       distasteful.” A nonparty cannot both have his contract and defeat it
       too.
       While Von Bargen never based her personal injury claim on the
       contract, her prior exercise of other contractual rights and her
       equitable entitlement to other contractual benefits prevents her from
       avoiding the arbitration clause here . . . .

Id. at 133 (citations omitted).

       The dealership argues that “the facts of this case are analogous to those in

Weekly Homes” because Rocha is Jose’s wife and brought Jose’s car to the

dealership for warranty work, “taking advantage of the contractual relationship

between her husband and AutoNation Toyota.”              It also urges us to take her

referring to Jose’s vehicle as “my car” is a judicial admission. The dealership

contends that under direct-benefits estoppel, Rocha “cannot demand AutoNation

Toyota’s compliance with contractual obligations to repair the Vehicle under

warranty and then seek to avoid the Arbitration Clause simply because she did not

sign it.”

       The dealership also argues that the arbitration clause is broad enough to

cover Rocha’s claims. It relies on the following clause: “Any claim or dispute,

whether in contract, tort, statute or otherwise . . . which arises out of or relates to . .

. this contract or any resulting transaction or relationship (including any subsequent
                                            15
relationship with third-parties who do not sign this contract) shall . . . . be resolved

by neutral, binding arbitration.” (emphasis added). Because her tort claim is based

on injuries sustained on the dealership’s premises while Jose’s vehicle was being

serviced, the dealership insists that her claim falls within the scope of the clause.

        Rocha responds that “in stark contrast to the plaintiff in Weekley, here,

Rocha’s claims are not in any way derived from her husband’s contract with the

dealership, but instead through a common tort law claim.” She relies upon the

supreme court’s admonishment that “although a non-signatory’s claim may relate

to a contract containing an arbitration provision, that relationship does not, in itself,

bind the non-signatory to the arbitration provision.” (citing Kellogg, 166 S.W.3d at

741).    Rocha contends that she “sustained personal injuries as a direct and

proximate result of a dangerous condition of the premises,” rather than any defect

or dangerous condition related to the vehicle or its repairs. And, finally, she points

out that “the often invoked ‘policy in favor of arbitration agreements’ does not

apply when a court is a examining the threshold question of whether an arbitration

agreement exists.” (citing Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S.

287, 302, 130 S. Ct. 2847, 2859 (2010); Morrison v. Amway Corp., 517 F.3d 248,

254 (5th Cir. 2008); In re Morgan Stanley & Co., 293 S.W.3d 182, 185 (Tex.

2009).




                                           16
      We agree with Rocha that her personal-injury claim and its relationship to

her husband’s contract with the dealership is distinguishable from the plaintiff’s

personal-injury claim and its relationship with the home construction contract

presented in Weekley. As the supreme court in Weekley explained,

      Under both Texas and federal law, whether a claim seeks a direct
      benefit from a contract containing an arbitration clause turns on the
      substance of the claim, not artful pleading. Claims must be brought on
      the contract (and arbitrated) if liability arises solely from the contract
      or must be determined by reference to it. On the other hand, claims
      can be brought in tort (and in court) if liability arises from general
      obligations imposed by law.

Weekley, 180 S.W.3d at 132. Under this formulation, Rocha is not bound through

direct-benefits estoppel because her complaint that hazardous conditions existed on

the dealership’s premises does not involve a duty or liability arising from her

husband’s purchase contract, liability will not be determined by reference to that

contract, and the claim arises from general obligations to keep premises safe.

      This is not to say that there are not circumstances under which a tort claim

by a non-signatory to an arbitration agreement arising from general duties and

obligations under the law (rather than a contract) is nonetheless subject to

arbitration through the theory of direct-benefits estoppel. Indeed, the supreme

court in Weekley held the non-signatory plaintiff bound by her father’s obligation

to arbitrate claims even though the plaintiff brought a personal-injury tort claim

and did not sue under the contract containing the arbitration clause. 180 S.W.3d at


                                         17
133. The court began by noting that “[w]hile Weekley’s duty to perform those

repairs [upon which the plaintiff’s personal injury claim was based] arose from

[her father’s] Purchase Agreement, a contractor performing repairs has an

independent duty under Texas tort law not to injure bystanders by its activities, or

by premises conditions it leaves behind.” Id. at 132. It explained, however, that—

for purposes of direct-benefit estoppel—“a nonparty may seek or obtain direct

benefits from a contract by means other than a lawsuit,” and, in “some cases, a

nonparty may be compelled to arbitrate if it deliberately seeks and obtains

substantial benefits from the contract itself. “ Id.

      Given all the factors that went into the Weekley court’s decision compelling

arbitration of the non-signatory plaintiff’s tort claim demonstrates that applying

direct-benefits estoppel to compel arbitration of a tort claim that does not rely

upon—or require reference to—the contract containing the arbitration clause is the

exception, not the rule. And Rocha’s is not such an exceptional claim.

      The dealership insists that because Rocha referred to the vehicle her husband

purchased as “my car,” she has judicially admitted that she was the primary driver

and, thus, a beneficiary of the contract between her husband and the dealership.

Without regard for whether the record supports this inference, Weekley would not

bind her to the arbitration clause in her husband’s contract merely because she

drives the car. In fact, the Weekley court took pains to point out that the plaintiff in


                                           18
that case “had not merely resided in the home.” Id. at 133. In addition, she (1)

claimed authority under her father’s purchase contract, (2) directed Weekly on

custom features and “repeatedly demanded extensive repairs, (2) “personally

requested and received” reimbursements from Weekley, and (3) conducted

settlement negotiations with Weekley. Id. In addition, the supreme court noted

that plaintiff’s father and the family trust sued “on claims which are explicitly

based on the contract.”     Id.   Given that the plaintiff is co-trustee and sole

beneficiary of the family trust, the court expressed concern that allowing her to

avoid an arbitration clause that the trust was bound by when she was the sole

beneficiary of the trust would allow policies favoring arbitration to be thwarted.

Id. at 135.

      Nonetheless, the court cautioned that direct-benefit estoppel does not “apply

when the benefits alleged are insubstantial or indirect,”; rather a non-signatory

must seek “substantial and direct benefits from the contract.” Id. at 134. It was the

plaintiff’s “prior exercise of other contractual rights and her equitable entitlement

to other contractual benefits” in Weekley that prevented her from avoiding the

arbitration clause. Id.

      While the dealership makes much of the fact that Rocha was only at the

dealership because warranty work was being performed on her husband’s vehicle,

the dealership’s duty to keep its premises safe (1) is unrelated to whether someone


                                         19
brings in their own car or another person’s car for repair, and (2) is unrelated to

whether the repair work is paid for or is free (pursuant to a warranty provided by

that dealership or by a manufacturer’s warranty on a vehicle purchased at that

dealership or a different dealership). In EnGlobal U.S.. Inc. v. Gatlin, the court

rejected the argument that direct-benefits estoppel applied to compel arbitration of

plaintiff’s premises liability claim against a company whose control over the

premises was pursuant to a contract containing a TAA arbitration clause. 449

S.W.3d 269, 280 (Tex. App.—Beaumont 2014, no pet.) The court reasoned that a

non-signatory to a contract “cannot be compelled to arbitrate on the sole ground

that, but for the contract containing the arbitration provision, [the plaintiff] would

have no basis to sue” in tort. Id. (citing Kellogg, 166 S.W.3d at 740).   The Gatlin

court also rejected the argument that the plaintiff’s negligent-undertaking claim

was subject to arbitration for similar reasons. Id. at 282 (“The fact that the [non-

signatory plaintiff’s] negligent undertaking claim may ‘relate to’ the MSA

[containing the arbitration clause] in the sense that [the defendant] would not have

performed the undertaking but for the MSA does not, in itself, bind [the plaintiff]

to the arbitration clause in the MSA.”).

       The dealership cites no cases other than Weekley in support of its claim that

Rocha’s personal injury claim is subject to arbitration.   And our own research has

not revealed any cases applying direct-benefits estoppel to compel arbitration of a


                                           20
non-signatory’s personal injury claim that has such an attenuated and gratuitous

connection to the contract under which the defendant seeks to compel arbitration.

The trial court abused its discretion by concluding Rocha was bound by the

arbitration clause. Thus we need not reach the issue of whether her personal injury

claim would fall within the scope of the arbitration clause were she bound by it.

                                 CONCLUSION

      We deny the dealership’s motion to dismiss the portion of Rocha’s appeal

challenging the trial court’s order compelling arbitration. We vacate the trial

court’s dismissal of Rocha’s claims, reverse the trial court’s order compelling

Rocha to arbitrate her claims, and remand the cause to the trial court for further

proceedings.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.




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