Affirmed as Modified and Opinion filed May 7, 2019.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-17-00900-CV

                    STANWYN JAY CARTER, Appellant
                                        V.
     ZB, NATIONAL ASSOCIATION D/B/A AMEGY BANK, Appellee

                    On Appeal from the 55th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2017-56775

                                  OPINION
      Appellant Stanwyn Jay Carter, pro se, appeals the trial court’s order granting
appellee ZB, National Association d/b/a Amegy Bank (“Amegy Bank”) summary
judgment on its claim for declaratory relief that Carter cannot force Amegy Bank
to arbitrate the dispute in an arbitration that Carter had commenced. We modify
the trial court’s judgment to delete two declarations and affirm the judgment as
modified.
                I.     FACTUAL AND PROCEDURAL BACKGROUND

      Contours Community Development Corporation executed a promissory
note dated September 1, 2010, in the principal amount of $544,000 (the “Note”)
payable to Amegy Bank. Carter signed the Note as Executive Director of
Contours.    Contours and Amegy Bank executed a “First Modification and
Extension to Note and Deed of Trust,” dated December 31, 2010 (“First
Modification”). Carter signed the First Modification as Executive Director of
Contours.

      Paragraph 43 of the Note and paragraph 13 of the First Modification
address dispute resolution and are substantially similar in all material respects.
Each paragraph has a section entitled “JURY TRIAL WAIVER,” and a section
entitled “ARBITRATION.” In the first section, Contours and Amegy Bank
waive their right to a jury trial in connection with a claim, dispute, or controversy
that arises between them with respect to the Note, related agreements, or any
other agreement or business relationship between them, whether or not related to
the subject matter of the Note (hereinafter a “Dispute”). In the first paragraph,
Contours and Amegy Bank agree that any Dispute will be resolved “BY A
JUDGE SITTING WITHOUT A JURY.” Contours and Amegy Bank agree that
if a court determines that the jury-trial-waiver provision is not enforceable, then
before trial of a Dispute but not later than thirty days after entry of the order
determining the provision to be unenforceable, either party may move the court
for an order compelling arbitration and staying or dismissing such litigation
pending arbitration (an “Arbitration Order.”).

      In the second paragraph regarding arbitration, Contours and Amegy Bank
agree that if a Dispute arises and only if a jury-trial waiver is not permitted by
applicable law or by a court ruling, then either party may require that the Dispute

                                          2
be resolved by binding arbitration before a single arbitrator at the request of any
party.

         Carter, pro se, filed a demand for arbitration with JAMS, seeking to arbitrate
claims against Amegy Bank under the arbitration provision in Paragraph 43 of the
Note. When JAMS refused to dismiss the arbitration, Amegy Bank filed suit in the
trial court below seeking declaratory relief, including a declaration that Carter
cannot force Amegy Bank to arbitrate, and seeking to stay the arbitration
proceedings.      Instead of filing an answer, Carter filed a motion to compel
arbitration.

         Following a temporary restraining order and a temporary injunction
enjoining Carter from continuing to prosecute the arbitration, Amegy Bank filed
a motion for traditional summary judgment. In the motion, Amegy Bank sought
various declarations as a matter of law, including a declaration that Carter cannot
force Amegy Bank to arbitrate the dispute in the commenced JAMS arbitration
styled Carter, Stanwyn Jay v. Amegy Bank National Association (hereinafter the
“Carter Dispute”). Amegy Bank maintains that Carter improperly commenced
arbitration predicated on an arbitration provision that does not authorize
arbitration at this juncture. Amegy Bank attached to its motion authenticated
copies of the Note and the First Modification. Carter filed a summary-judgment
response, asserting various points and arguing that he raised genuine issues of
material fact.

         The trial court granted Amegy Bank’s summary-judgment motion, making
seven declarations as a matter of law. The trial court later rendered a final
judgment ordering that the Carter Dispute remain stayed. In the final judgment
the trial court reiterated the same seven declarations:



                                            3
      1.    Pursuant to Paragraph 43 of the Promissory Note and Paragraph
            13 of the First Modification and Extension to Note and Deed of
            Trust (“First Modification”), only a court may determine the
            validity, enforceability, meaning, and scope of the Promissory
            Note and First Modification’s arbitration provisions.
      2.    Pursuant to Paragraph 43 of the Promissory Note and Paragraph
            13 of the First Modification, arbitration cannot be commenced
            unless a court determines that the jury trial waiver is not
            enforceable.
      3.    Pursuant to Paragraph 43 of the Promissory Note and Paragraph
            13 of the First Modification, arbitration cannot be commenced
            until there is an Arbitration Order as defined in the Promissory
            Note and First Modification.
      4.    Pursuant to Paragraph 43 of the Promissory Note and Paragraph
            13 of the First Modification, an Arbitration Order cannot issue
            unless a court determines that the jury trial waiver is not
            enforceable.
      5.    An Arbitration Order has not issued.
      6.    There has been no determination that the jury trial waiver is
            unenforceable.
      7.    Defendant Stanwyn Jay Carter cannot force ZB, National
            Association d/b/a Amegy Bank to arbitrate the dispute in the
            commenced JAMS arbitration styled Carter, Stanwyn Jay vs.
            Amegy Bank National Association.

      On appeal Carter argues that the trial court reversibly erred in granting
summary judgment.

                                 II.    Analysis

      Liberally construing Carter’s brief, we interpret Carter to assert the
following points:

      (1) The agreement does not require an arbitration order to issue
      before an arbitration may be initiated under the arbitration clause.
      (2)   Under their plain texts, the agreements provide for arbitration if

                                         4
      a jury-trial waiver is not permitted by applicable law or by court
      ruling, and thus there is no requirement that a court determine the
      jury-trial waiver to be unenforceable.
      (3) The jury-trial-waiver provision applies if permitted by
      applicable law or by a court ruling, but no summary-judgment
      evidence proves either proposition.
      (4) Even though Carter did not sign the Note or First Modification
      in his individual capacity, Carter may arbitrate the Carter Dispute
      because he is an obligated party to an arbitration agreement that
      encompasses the Carter Dispute and because Amegy Bank refuses to
      arbitrate.
      (5) The trial court erred in declaring that Carter cannot force
      Amegy Bank to arbitrate the Carter Dispute because the arbitration
      clause provides that “Arbitration shall be commenced by filing a
      petition with, and in accordance with the applicable arbitration rules
      of, JAMS or National Arbitration Forum . . . as selected by the
      initiating party.”
      (6) The trial court’s first declaration is contrary to precedent under
      which attacks on the validity of the contract, as opposed to attacks on
      the validity of the arbitration clause, are to be resolved by the
      arbitrator in the first instance.
      (7) Under the contracts, either the jury-trial waiver is enforceable
      or the arbitration clause is enforceable, and because the arbitration
      clause is valid, irrevocable and enforceable, the jury-trial waiver
      necessarily is unenforceable.

A.    Standard of review

      We review declaratory judgments decided by summary judgment under the
same standards that govern summary judgments generally. See Tex. Civ. Prac. &
Rem. Code § 37.010 (West, Westlaw through 2017 1st C.S.); Wolf Hollow I, L.P.
v. El Paso Mktg., L.P., 472 S.W.3d 325, 332 (Tex. App.—Houston [14th Dist.]
2015, pet. denied). We review the trial court’s grant of a summary judgment de
novo. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.
2003). In a traditional motion for summary judgment, if the movant’s motion and

                                        5
summary-judgment evidence facially establish its right to judgment as a matter of
law, the burden shifts to the nonmovant to raise a genuine, material fact issue
sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In our de novo review of a trial court’s
summary judgment, we consider all the evidence in the light most favorable to the
nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors
could, and disregarding contrary evidence unless reasonable jurors could not.
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence
raises a genuine issue of fact if reasonable and fair-minded jurors could differ in
their conclusions in light of all of the summary-judgment evidence. Goodyear Tire
& Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

      In this case, the trial court was asked to render a declaratory judgment based
on the Note and the First Modification, instruments subject to the general rules of
contract construction. See Marzo Club, LLC v. Columbia Lakes Homeowners
Ass’n, 325 S.W.3d 791, 798 (Tex. App.—Houston [14th Dist.] 2010, no pet.). In
construing a contract, our primary concern is to ascertain and give effect to the
intentions of the parties as expressed in the contract. Kelley-Coppedge, Inc. v.
Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998). To ascertain the parties’
true intentions, we examine the entire agreement in an effort to harmonize and give
effect to all provisions of the contract so that none will be rendered meaningless.
MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex. 1999).
Whether a contract is ambiguous is a question of law for the court. Heritage Res.,
Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). A contract is ambiguous
when its meaning is uncertain and doubtful or is reasonably susceptible to more
than one interpretation. Id. But, when a written contract is worded so that it can
be given a certain or definite legal meaning or interpretation, it is unambiguous,


                                         6
and the court construes it as a matter of law. Am. Mfrs. Mut. Ins. Co. v. Schaefer,
124 S.W.3d 154, 157 (Tex. 2003). We cannot rewrite the contract or add to its
language under the guise of interpretation. See American Mfrs. Mut. Ins. Co., 124
S.W.3d at 162. Rather, we must enforce the contract as written. See Don’s Bldg.
Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 23 (Tex. 2008).

B.     Law on arbitration

       A party seeking to force another party to arbitrate certain claims must
establish that (1) a valid arbitration agreement exists1 and (2) the claims at issue are
within the scope of the agreement. See In re D. Wilson Const. Co., 196 S.W.3d
774, 780–81 (Tex. 2006) (orig. proceeding); In re Igloo Prods. Corp., 238 S.W.3d
574, 577 (Tex. App.—Houston [14th Dist.] 2007, orig. proceeding [mand.
denied]). If the party seeking arbitration proves a valid arbitration agreement, any
doubts as to whether the claims fall within the scope of the arbitration clause must
be resolved in favor of arbitration. See Prudential Sec. Inc. v. Marshall, 909
S.W.2d 896, 899 (Tex. 1995); Osornia v. AmeriMex Motor & Controls, Inc., 367
S.W.3d 707, 712 (Tex. App.—Houston [14th Dist.] 2012, no pet.). A court should
not deny arbitration unless the court can say with positive assurance that an
arbitration clause is not susceptible of an interpretation that would cover the claims
at issue. See Prudential Sec. Inc., 909 S.W.2d at 899; Osornia, 367 S.W.3d at 712.
       We presume for the purposes of our analysis that the arbitration clauses in
the Note and First Modification are broad, making the presumption of arbitrability
particularly applicable. See Osornia, 367 S.W.3d at 712. In such instances, absent

1
  If all relevant parties did not sign the contract containing the arbitration agreement, this first
prong may include issues as to whether a non-signatory is bound by or may enforce the
arbitration agreement. See In re Rubiola, 334 S.W.3d 220, 223–24 (Tex. 2011). Though Carter,
in his individual capacity, is a non-signatory, we presume, without deciding, that Carter may
enforce arbitration of the Carter Dispute under the arbitration provisions of the Note and First
Modification.

                                                 7
any express provision excluding a particular grievance from arbitration, only the
most forceful evidence of purpose to exclude the claim from arbitration can
prevail, and Amegy Bank has the burden of showing that the claims fall outside the
scope of the arbitration clauses. See id. Nonetheless, the strong policy favoring
arbitration cannot serve to stretch a contractual clause beyond the scope intended
by the parties or to allow the court to modify the unambiguous meaning of the
arbitration clause. See id.
C.       Applicable language from the Note and the First Modification

         The First Modification provides in pertinent part as follows:

               13. Dispute Resolution. This paragraph contains a jury
         waiver, arbitration clause[,] and a class action waiver. This paragraph
         should be carefully read.
              (a) JURY TRIAL WAIVER.       AS PERMITTED BY
         APPLICABLE LAW, EACH PARTY WAIVES ITS RESPECTIVE
         RIGHTS TO A TRIAL BEFORE A JURY IN CONNECTION WITH
         ANY DISPUTE (HEREINAFTER DEFINED), AND DISPUTES
         SHALL BE RESOLVED BY A JUDGE SITTING WITHOUT A
         JURY.2 IF A COURT DETERMINES THAT THIS PROVISION IS
         NOT ENFORCEABLE FOR ANY REASON, THEN AT ANY TIME
         PRIOR TO TRIAL OF THE DISPUTE, BUT NOT LATER THAN
         THIRTY (30) DAYS AFTER ENTRY OF THE ORDER
         DETERMINING THIS PROVISION IS UNENFORCEABLE,
         EITHER PARTY SHALL BE ENTITLED TO MOVE THE COURT
         FOR AN ORDER COMPELLING ARBITRATION AND STAYING
         OR DISMISSING SUCH LITIGATION PENDING ARBITRATION
         (“ARBITRATION ORDER”).
                (b) ARBITRATION. If a claim, dispute, or controversy arises
         between the parties hereto with respect to [the First Modification] or
         the Note, related agreements, or any other agreement or business
         relationship between the parties hereto whether or not related to the
         subject matter of [the First Modification] or the Note (all of the
         foregoing, a “Dispute”), and only if a jury trial waiver is not
2
    boldface added

                                            8
         permitted by applicable law or ruling by a court,3 either party may
         require that the Dispute be resolved by binding arbitration before a
         single arbitrator at the request of any party. By agreeing to arbitrate a
         Dispute, each party gives up any right such party may have to a jury
         trial, as well as other rights such party would have in court that are not
         available or are more limited in arbitration, such as the rights to
         discovery and to appeal.
         Arbitration shall be commenced by filing a petition with, and in
         accordance with the applicable arbitration rules of, JAMS or National
         Arbitration Forum (“Administrator”) as selected by the Initiating
         party. If the parties agree, arbitration may be commenced by
         appointment of a licensed attorney who is selected by the parties and
         who agrees to conduct the arbitration without an Administrator.
         Disputes include matters [stating several matters]. However, Disputes
         do not include the validity, enforceability, meaning, or scope of this
         arbitration provision and such matters may be determined only by a
         court. If a third party is a party to a Dispute, each party will consent
         to including the third party in the arbitration proceeding for resolving
         the Dispute with the third party. Venue for the arbitration proceeding
         shall be at a location determined by mutual agreement of the parties
         or, if no agreement, in the city and state where lender or bank is
         headquartered.
         After entry of an Arbitration Order, the non-moving party shall
         commence arbitration. The moving party shall, at its discretion, also
         be entitled to commence arbitration but is under no obligation to do
         so, and the moving party shall not in any way be adversely prejudiced
         by electing not to commence arbitration. The arbitrator . . . [listing
         tasks that arbitrator will perform]. Filing of a petition for arbitration
         shall not prevent any party from [listing various actions a party may
         take]. The exercise of such rights shall not constitute a waiver of the
         right to submit any Dispute to arbitration.
         Judgment upon an arbitration award may be entered in any court
         having jurisdiction except that, if the arbitration award exceeds
         $4,000,000.00, any party shall be entitled to a de novo appeal of the
         award before a panel of three arbitrators. To allow for such appeal,
         [setting forth provisions regarding the procedure for a party to

3
    emphasis added

                                             9
      exercise its right to appeal an arbitration award in excess of
      $4,000,000.00 to a panel of three arbitrators].
      Arbitration under this provision concerns a transaction involving
      interstate commerce and shall be governed by the Federal Arbitration
      Act, 9 U.S.C. § 1 et seq. This arbitration provision shall survive any
      termination, amendment, or expiration of [the First Modification] and
      the Note. If the terms of this provision vary from the Administrator’s
      rules, this arbitration provision shall control.
      The correlative parts of the Note are substantially similar in all material
respects to the above-quoted text.     Both the Note and the First Modification
contain a provision stating that the instrument shall be governed by and construed
in accordance with Texas law.

D.    Trial court’s determination that no party can start an arbitration unless
      a court has determined that the jury-trial waiver is not enforceable
      In its second declaration, the trial court ruled that under Paragraph 43 of the
Note and Paragraph 13 of the First Modification, “arbitration cannot be
commenced unless a court determines that the jury trial waiver is not enforceable.”
On appeal, Carter asserts that under the plain text of the Note and First
Modification, there is no such requirement.       Amegy Bank asserts that Carter
waived this argument by not presenting it in his summary-judgment response in the
trial court. Even if Carter did not raise this argument in his summary-judgment
response, the law does not require that he have done so because his challenge
constitutes a complaint that Amegy Bank’s summary-judgment evidence does not
prove as a matter of law Amegy Bank’s entitlement to summary judgment on a
traditional ground. See M.D. Anderson Hosp. & Tumor Institute v. Willrich, 28
S.W.3d 22, 23 (Tex. 2000). Thus, Carter still can raise this complaint. See id.

      Under the unambiguous wording of each instrument, the parties agree to
arbitrate any Dispute, but “only if a jury trial waiver is not permitted by applicable

                                         10
law or ruling by a court.” Thus, the arbitration agreement is triggered only if: (1) a
jury-trial waiver is not permitted by applicable law, or (2) a court rules that a jury-
trial waiver is not permitted. See Morgan v. Bronze Queen Mngmt. Co., LLC, 474
S.W.3d 701, 710 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (construing
similar language). Though such a court order does trigger the arbitration clause, it
is not the exclusive trigger. See id.

      In the jury-trial-waiver paragraph, the parties agree that, if a court
determines that the jury-trial waiver is not enforceable for any reason, then before
trial and no later than thirty days after entry of the order, either party is entitled to
ask the court for an order compelling arbitration and staying or dismissing the
litigation pending arbitration. This language is consistent with the language in the
arbitration provision, in which the parties agree that one of two situations in which
their arbitration agreement is triggered is when a court rules that a jury-trial waiver
is not permitted.     Yet, neither in the jury-trial-waiver provision nor in the
remainder of either instrument do the parties agree that such a court ruling is the
only situation in which the parties agree to arbitrate a Dispute. See id.

      Under the unambiguous language of the two instruments, the arbitration
clause may be triggered without any court order if a jury-trial waiver is not
permitted by applicable law. See id. Therefore, the trial court erred in declaring
that under Paragraph 43 of the Note and Paragraph 13 of the First Modification,
“arbitration cannot be commenced unless a court determines that the jury trial
waiver is not enforceable.” See id.; Marzo Club, LLC, 325 S.W.3d at 799–800.

E.    Trial court’s determination that no party can start an arbitration until
      there is an order compelling arbitration
      In its second declaration, the trial court ruled that under Paragraph 43 of the
Note and Paragraph 13 of the First Modification, “arbitration cannot be


                                           11
commenced until there is an Arbitration Order.” On appeal, Carter asserts that
under the plain text of the Note and First Modification, there is no such
requirement.    Amegy Bank asserts that Carter waived this argument by not
presenting it in his summary-judgment response in the trial court. Even if Carter
did not raise this argument in his summary-judgment response, the law does not
require that he have done so because he is asserting that Amegy Bank’s summary-
judgment evidence does not prove as a matter of law Amegy Bank’s entitlement to
summary judgment on a traditional ground. See M.D. Anderson Hosp. & Tumor
Institute, 28 S.W.3d at 23. Thus, Carter can raise this complaint for the first time
on appeal. See id.

      In the jury-trial-waiver provision, the parties agree that if a court determines
that the jury-trial waiver is not enforceable for any reason then before trial and no
later than thirty days after the order’s entry, either party may ask the court for an
order compelling arbitration and staying or dismissing the litigation pending
arbitration. Under the clear text of each instrument, if a court determines that the
jury-trial waiver is not enforceable, then within a certain time period either party
may ask the court for an order compelling arbitration, but the parties do not make
an Arbitration Order mandatory. Nothing in the Federal Arbitration Act or Texas
Arbitration Act requires that parties get an order compelling arbitration, and unless
the parties agree that an order compelling arbitration is a necessary prerequisite to
arbitration, an arbitration may be conducted and an arbitration award may be
rendered and enforced without any order compelling arbitration. See Ewing v. Act-
Catastrophe Texas, L.C., 375 S.W.3d 545, 550–51 (Tex. App.—Houston [14th
Dist.] 2012, pet. denied).

      The parties do not state in either instrument that an order compelling
arbitration must be obtained before the parties may arbitrate a Dispute. On the

                                         12
contrary, under the permissive language of the jury-trial-waiver section, either
party may ask the court for an order compelling arbitration if a court determines
that the jury-trial waiver is not enforceable, as long as the party does so before trial
and within thirty days of the trial court’s order determining that the jury-trial
waiver is not enforceable. To construe the instruments as requiring a party to
obtain an order compelling arbitration would conflict with the parties’ agreement
that “EITHER PARTY SHALL BE ENTITLED TO MOVE THE COURT FOR
AN ORDER COMPELLING ARBITRATION.”4 Though the parties agree that
“[a]fter entry of an Arbitration Order, the non-moving party shall commence
arbitration,” the parties do not stipulate that arbitration may be commenced only
after an Arbitration Order.

         Amegy Bank argues that construing the instruments as not requiring an
Arbitration Order before a Dispute may be arbitrated would render superfluous the
requirement that a party seek an order compelling arbitration within thirty days of
the trial court’s order determining that the jury-trial waiver is not enforceable.
According to Amegy Bank, there would be no need for a thirty-day deadline to
seek an order compelling arbitration if the parties could proceed to arbitrate a
Dispute after the thirty-day deadline expired. We disagree.

         A deadline for seeking an Arbitration Order after a court’s order that the
jury-trial waiver is not enforceable still has meaning even if parties are free to
arbitrate without an Arbitration Order. If a party fails to seek an Arbitration Order
within this thirty-day period and then files an arbitration demand, one of the
respondents may refuse to arbitrate. In addition, if a jury-trial waiver is not
permitted by applicable law, then a court order that the jury-trial waiver is not


4
    emphasis added

                                          13
enforceable is not required, and a party may want to file an arbitration demand
without seeking an order compelling arbitration.

      Under the unambiguous language of the two instruments, arbitration may be
started without an Arbitration Order in some circumstances. Therefore, the trial
court erred in declaring as a matter of law that under Paragraph 43 of the Note and
Paragraph 13 of the First Modification, “arbitration cannot be commenced until
there is an Arbitration Order.”

F.    The trial court’s declaration as to who may determine arbitrability

      Carter also asserts that the trial court erred in declaring that under Paragraph
43 of the Note and Paragraph 13 of the First Modification, “only a court may
determine the validity, enforceability, meaning, and scope of the [arbitration
provisions in the Note and First Modification].” The parties agreed that “Disputes
do not include the validity, enforceability, meaning, or scope of this arbitration
provision and such matters may be determined only by a court.” Under the Federal
Arbitration Act, courts presume that parties to an arbitration agreement intend that
courts rather than arbitrators decide issues as to the validity, scope, and enforceability
of the arbitration clause. See Jody James Farms, JV v. Altman Group, Inc., 547
S.W.3d 624, 631–33 (Tex. 2018). Though Carter argues otherwise, this agreement
does not contradict precedent under which attacks on the validity of the contract as
a whole, as opposed to attacks on the validity of the arbitration clause, are to be
resolved by the arbitrator in the first instance.         Under the plain text of the
instruments, the parties agreed that “only a court may determine the validity,
enforceability, meaning, and scope of the [arbitration provisions in the Note and
First Modification].” Therefore, the trial court did not err in making the first
declaration in the final judgment. See Marzo Club, LLC, 325 S.W.3d at 799–800.



                                           14
G.    The declaration that Carter cannot force Amegy Bank to arbitrate the
      Carter Dispute
      Carter asserts that the trial court erred in declaring that Carter cannot force
Amegy Bank to arbitrate the Carter Dispute because the arbitration clause provides
that “Arbitration shall be commenced by filing a petition with, and in accordance
with the applicable arbitration rules of, JAMS or National Arbitration Forum . . . as
selected by the initiating party.”     But, this sentence does not address the
circumstances under which the parties have agreed to arbitrate or the scope of the
arbitration agreement. As discussed above, under the plain text of the instruments,
the parties’ agreement to arbitrate turns on either (1) a jury-trial waiver not being
permitted by applicable law, or (2) a court ruling that a jury-trial waiver is not
permitted. In its summary-judgment motion Amegy Bank asserted that the jury-
trial waiver provision is enforceable under applicable law, and Amegy cited legal
authorities showing that applicable law permits a jury-trial waiver. Indeed, Texas
and federal law allow jury-trial waivers. See In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 132–33 (Tex. 2004); Morgan, 474 S.W.3d at 710. In addition, the
undisputed summary-judgment evidence shows that no court has ruled that a jury-
trial waiver is not permitted.

      Even indulging the presumption that the Carter Dispute should be arbitrated
and resolving any doubts as to whether the arbitration clause requires arbitration of
the Carter Dispute in favor of arbitration, we can say with positive assurance that
the arbitration clauses are not susceptible of an interpretation that would require
arbitration of the Carter Dispute at this juncture. See Osornia, 367 S.W.3d at 712.
Under the express language of the arbitration clauses, the parties’ agreement to
arbitrate is conditioned on either (1) a jury-trial waiver not being permitted by
applicable law, or (2) a court ruling that a jury-trial waiver is not permitted.
Amegy Bank’s motion and summary-judgment evidence prove as a matter of law

                                         15
that neither condition has occurred, so there is no agreement to arbitrate the Carter
Dispute at this time. The strong policy in favor of arbitration cannot push the
boundaries of a contractual provision beyond the scope intended by the parties or
allow a court to modify the unambiguous meaning of the arbitration clause. See id.

      Carter also asserts that under the contracts, either the jury-trial waiver is
enforceable or the arbitration clause is enforceable, and because the arbitration
clause is valid, irrevocable, and enforceable, the jury-trial waiver necessarily is not
enforceable. This argument conflicts with the plain text of the instruments, under
which the parties have not agreed to arbitrate the Carter Dispute unless (1) a jury-
trial waiver is not permitted by applicable law, or (2) a court rules that a jury-trial
waiver is not permitted.

      Carter claims that the jury-trial-waiver provision applies if permitted by
applicable law or by a court ruling, but that no summary-judgment evidence proves
either proposition.    In this argument, Carter does not correctly state the two
conditions, which are (1) a jury-trial waiver not being permitted by applicable law,
or (2) a court ruling that a jury-trial waiver is not permitted.

      Under the applicable standard of review, we conclude the trial court did not
err in declaring as a matter of law that Carter cannot force Amegy Bank to arbitrate
the Carter Dispute. See In re Prudential Ins. Co. of Am., 148 S.W.3d at 132–33;
Morgan, 474 S.W.3d at 710; Osornia, 367 S.W.3d at 712.

                                  III.   Conclusion

      Under the express language of the arbitration clauses, the parties conditioned
their agreement to arbitrate on either (1) a jury-trial waiver not being permitted by
applicable law, or (2) a court ruling that a jury-trial waiver is not permitted.
Amegy Bank’s motion and summary-judgment evidence prove as a matter of law


                                           16
that neither condition has occurred, and therefore that there is no agreement to
arbitrate the Carter Dispute at this time. We conclude the trial court did not err in
declaring as a matter of law that Carter cannot force Amegy Bank to arbitrate the
Carter Dispute. Because the trial court’s second and third declarations conflict
with the unambiguous language of the instruments, we modify the trial court’s
judgment to delete these two declarations, and we affirm the judgment as modified.




                                       /s/    Kem Thompson Frost
                                              Chief Justice



Panel consists of Chief Justice Frost and Justices Wise and Jewell.




                                         17
