Reversed and Remanded and Majority Opinion and Dissenting Opinion filed
August 9, 2018.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-17-00483-CV
                             NO. 14-17-00540-CV

   SOUTHERN GREEN BUILDERS, LP AND SAM SEIDEL, Appellants
                                       V.

                       JAIME CLEVELAND, Appellee

                   On Appeal from the 215th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2017-13499

                     MAJORITY OPINION


      Appellant Southern Green Builders, a residential home builder, sued appellee
Jaime Cleveland, prospective homeowner, for breach of contract.         Cleveland
responded with a counterclaim against SGB, and a third-party claim against SGB’s
principal, appellant Sam Seidel. SGB and Seidel both moved to compel arbitration,
which the trial court denied.1 In a consolidated, accelerated, interlocutory appeal,
SGB and Seidel argue the trial court erred in denying arbitration. We agree.

                                  I.     Background

      This is a residential construction dispute. On September 30, 2015, Seidel, on
behalf of SGB, entered in to a Residential Construction Contract (the “contract”) to
build for Cleveland the residence at 3424 Sunset Boulevard, Houston, Harris
County, Texas, at an agreed price of $1,680,340.39. The contract contained the
following language regarding arbitration of disputes:

      17. RESOLUTION OF DISPUTES. The Parties desire prompt,
      inexpensive and efficient dispute resolution procedures and therefore
      agree that their disputes shall be governed by the following:
                                           ***
      (c) Mediation-Binding Arbitration/Waiver of Jury Trial. The Owner
      and Builder agree that all controversies, claims (and any related
      settlements), or matters in question arising out of or relating to (i) this
      Contract, (ii) any breach or termination of this Contract, (iii) the
      construction of the Home and/or its repairs, (iv) any acts or omissions
      by the Builder (and its officers, directors or agents), and/or (v) any
      actual or purported representations or warranties, express or implied,
      relating to the Property and/or the Home (herein referred to collectively
      as a “Dispute”) may be submitted to binding arbitration, but both parties
      shall also have the right to seek other legal remedies as they see fit and
      the law allows.
                                           ***
      25. ENTIRE AGREEMENT. This Contract, together with all
      attachments, contains the entire understanding between Builder and
      Owner with respect to the construction of the Home, and replaces all
      prior agreements or understandings, if any. BUILDER IS NOT
      BOUND BY ANY STATEMENT, PROMISE, CONDITION OR

      1
        In separate appeals, SGB (14-17-00483-CV) and Seidel (14-17-00540-CV) both seek
enforcement of the same arbitration clause against the same party, Cleveland. We granted an
agreed motion to consolidate the appeals.

                                            2
      STIPULATION NOT SPECIFICALLY SET FORTH IN THIS
      CONTRACT. No representative of Builder has authority to make any
      oral statements that modify or change the terms and conditions of this
      Contract. OWNER REPRESENTS THAT OWNER HAS READ AND
      UNDERSTANDS THIS ENTIRE CONTRACT, INCLUDING THE
      AGREEMENT FOR BINDING ARBITRATION OF DISPUTES
      RELATED TO THIS CONTRACT (AS AMENDED). OWNER
      ALSO REPRESENTS THAT NO VERBAL STATEMENT,
      PROMISE OR CONDITION NOT SPECIFICALLY SET FORTH IN
      THIS CONTRACT IS BEING RELIED UPON BY OWNER. IT IS
      ACKNOWLEDGED THAT BUILDER IS RELYING ON THESE
      REPRESENTATIONS AND WOULD NOT ENTER INTO THIS
      CONTRACT WITHOUT THIS UNDERSTANDING.
      During the construction of the residence, a dispute arose between the parties
regarding payment and performance under the contract. On February 27, 2017, SGB
filed a demand for arbitration of its rights as well as an original petition in the trial
court, which was made subject to SGB’s right to arbitrate.

      In response, the Cleveland’s asserted a counterclaim against SGB for fraud,
Deceptive Trade Practices Act violations, negligent misrepresentation, breach of
contract, breach of implied warranty, and a request for declaratory relief wherein
they request the trial court to declare the arbitration language in the contract is
permissive and does not compel Cleveland to arbitrate. Cleveland also added a third-
party petition against appellant Sam Seidel, SGB’s principal, for fraud, DTPA
violations, and negligent misrepresentation.

      SGB voluntarily dismissed the arbitration proceeding without prejudice and
moved the trial court to compel arbitration under the contract. On May 19, 2017,
the trial court held a hearing on SGB’s motion to compel and, after taking it under
advisement, denied the motion on June 7, 2017. Seidel also filed a motion to compel,
requesting the trial court to compel arbitration of all claims under the contract. The
trial court denied Seidel’s motion without a hearing on July 6, 2017. SGB and Seidel

                                           3
timely filed their respective notices of appeal, which were consolidated by this
Court.

                                     II.    Analysis

         The central focus of this appeal is whether the trial court erred in denying SGB
and Seidel’s motions to compel arbitration. Appellants raise three issues: (1) is
arbitration required when requested under this contract; (2) Does Cleveland’s
extrinsic evidence alter the express terms of the contract; and (3) do the parties’
claims fall within the scope of the arbitration agreement?

A.       Standard of review and substantive law

         Section 171.098 of the Texas Civil Practice and Remedies Code permits the
interlocutory appeal of an order denying a motion to compel arbitration. Tex. Civ.
Prac. & Rem. Code § 171.098(a)(1). Under an abuse of discretion standard, we defer
to the trial court’s factual determinations if they are supported by evidence, but we
review the trial court’s legal determinations de novo. In re Labatt Food Servs., L.P.,
279S.W.3d 640, 643 (Tex. 2009) (citing Brainard v. State, 12 S.W.3d 6, 30 (Tex.
1999); see Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992)). Whether an
arbitration agreement is enforceable is subject to de novo review. See id. (citing
J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003)).

         “Courts cannot compel a party to arbitrate claims in the absence of an
agreement to arbitrate.” Kehoe v. Pollack, 526 S.W.3d 781, 791 (Tex. App.—
Houston [14th Dist.] 2017, no pet.) (citing In the Estate of Guerrero, 465 S.W.3d
693, 699 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (en banc)). A party
moving to compel arbitration bears the initial burden of proving the existence of an
arbitration agreement. Ellis v. Schlimmer, 337 S.W.3d 860, 862 (Tex. 2011) (citing
J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003); Tex. Civ. Prac.


                                             4
& Rem. Code § 171.021(a)); see also Rachal v. Reitz, 403 S.W.3d 840, 843 (Tex.
2013) (The party moving to compel arbitration must establish the existence of a valid
arbitration agreement and the existence of a dispute within the scope of that
agreement.). A party moving to compel a party who did not sign the arbitration
agreement to arbitrate also bears the burden of establishing that the arbitration
agreement binds the nonsignatory. See Kehoe, 526 S.W.3d at 791; The Branch Law
Firm, L.L.P. v. Osborn, 447 S.W.3d 390, 394 (Tex. App.—Houston [14th Dist.]
2014, no pet.); see also Labatt Food Servs., 279 S.W.3d at 643 (when “arbitration
agreement is silent about who is to determine whether particular persons are bound
by the agreement, courts, rather than the arbitrator, should determine the issue”).

      The existence of a valid arbitration agreement is a legal question. In re D.
Wilson Constr., 196 S.W.3d 774, 781 (Tex. 2006). In interpreting an agreement to
arbitrate, we apply ordinary contract principles. J.M. Davidson, Inc., 128 S.W.3d at
227. We examine and consider the entire writing in an effort to harmonize and give
effect to all the provisions of the contract so that none will be rendered meaningless.
Id. at 229. A trial court “has no ‘discretion’ in determining what the law is or
applying the law to the facts.” In re D. Wilson Constr., 196 S.W.3d at 781 (quoting
Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding)).

      Once an agreement is established, a strong presumption favoring arbitration
arises, and the burden shifts to the party opposing arbitration to raise an affirmative
defense to the agreement’s enforcement. Ellis, 337 S.W.3d at 862. Indeed, “. . .a
court should not deny arbitration unless it can be said with positive assurance that
an arbitration clause is not susceptible of an interpretation which would cover the
dispute at issue.” In re D. Wilson Constr., 196 S.W.3d at 783 (emphasis original)
(internal quotation marks omitted) (quoting Prudential Sec. Inc. v. Marshall, 909
S.W.2d 896, 899 (Tex. 1995) (per curiam) (orig. proceeding)). Further, courts

                                          5
should resolve any doubts as to the agreement’s scope, waiver, and other issues
unrelated to its validity in favor of arbitration. Id. (see In re Poly–America, L.P.,
262 S.W.3d 337, 348 (Tex. 2008)). Here, appellants challenge the trial court’s
rulings on both motions to compel arbitration. We address each in turn.

B.     The trial court erred by denying appellants’ motions to compel

       SGB and Seidel, as the parties seeking to compel arbitration,2 argue that the
trial court erred in denying their motions to compel because they met their burden
by demonstrating (1) the existence of a valid and enforceable arbitration agreement
and (2) that the claims asserted against them fall within the scope of that agreement.
See Rachal, 403 S.W.3d at 843.

       First, it is undisputed that the Residential Construction Contract contains an
agreement to arbitrate. Section 17c lists categories of claims and provides those
claims “may be submitted to binding arbitration.” It also is undisputed that the
claims at issue between the parties arise out of the contract.3 SGB alleges breach of

       2
           Although Seidel was not a signatory to the contract, he may still compel arbitration in
this case because Cleveland brought third-party claims against Seidel that are tied to his official
capacity as owner of SGB. Thus, the claims are “in substance” claims against SGB and, as such,
fall within the scope of the arbitration provision as set forth in 17(c). See In re Merrill Lynch Trust
Co. FSB, 235 S.W.3d 185, 189-90 (Tex. 2007) (“Because the plaintiffs’ claims against Medina are
in substance claims against Merrill Lynch, they must abide by their agreement to arbitrate those
claims.”); In re Hous. Progressive Radiology Assocs., PLLC, 474 S.W.3d 435, 447 (Tex. App.—
Houston [1st Dist.] 2015, no pet.). Cleveland cannot circumvent his agreement to arbitrate with
SGB by bringing claims against Seidel. In his brief, Cleveland offers no authority to the contrary.
Because the claims against Seidel are in substance claims against SGB, our analysis of the trial
court’s denial of SGB’s and Seidel’s motions to compel is the same.
       3
         Cleveland does not squarely address whether claims between himself and SGB fall within
the scope of the arbitration provision of the contract; instead, he asserts that scope need not be
addressed because no agreement to arbitrate exists. With respect to Seidel, Cleveland asserts a
potential lack of standing to compel arbitration and again asserts that scope is irrelevant because
no agreement to arbitrate exists. As set forth, infra, we disagree with Cleveland’s interpretation
of the arbitration clause and its enforceability. And, as stated, infra at n.2, Seidel has standing to
compel arbitration. By virtue of Cleveland’s failure to address scope, it is undisputed that the
claims in dispute fall within the scope of the arbitration clause of the contract.

                                                  6
contract and prompt payment claims. Cleveland alleges issues against SGB and
Seidel, in his official capacity, stemming from performance of the contract. Thus,
the claims fall directly within the arbitration clause. The only matter in dispute is
whether the arbitration clause is enforceable.

      SGB and Seidel argue that arbitration is required if requested. They maintain
that the arbitration provision in Section 17(c)—i.e., that any dispute “may be
submitted to binding arbitration, but both parties shall also have the right to seek
other legal remedies as they see fit and the law allows”—constitutes a binding
promise to arbitrate if either party requested it. They maintain to give meaning to
all the terms of 17(c) it must be read as providing the scope of claims subject to
arbitration, stating that those claims are subject to arbitration upon request, and
confirming that, if arbitration not requested, the parties are free to pursue other forms
of dispute resolution. In their motions, SGB and Seidel cite to a Texas Supreme
Court decision that they contend is controlling and demands arbitration under these
circumstances. In re U.S. Home Corp., 236 S.W.3d 761 (Tex. 2007) (per curiam)
(“may” submit language requires arbitration when requested). Additionally, SGB
and Seidel contend that requiring arbitration when requested is consistent with the
rest of the contract. Under Section 25, which is entitled “Entire Agreement,” the
contract references an agreement for binding arbitration:

      OWNER REPRESENTS THAT OWNER HAS READ AND
      UNDERSTAND THIS ENTIRE CONTRACT, INCLUDING THE
      AGREEMENT FOR BINDING ARBITRATION OF DISPUTES
      RELATED TO THIS CONTRACT (AS AMENDED).
Further, Section 25, provides the builder is “NOT BOUND BY ANY
STATEMENT,          PROMISE,        CONDITION         OR      STIPULATION          NOT
SPECIFCIALLY SET FORTH IN THIS CONTRACT.”                         Similarly, Cleveland
represented that “NO VERBAL STATEMENT, PROMISE OR CONDITION NOT

                                           7
SPECIFICALLY SET FORTH IN THIS CONTRACT IS BEING RELIED UPON
BY OWNER.” Moreover, Section 20 of the contract references reimbursement of
arbitration fees by the successful party. Finally, SGB and Seidel maintain that
Cleveland accepted the contract, along with its terms and conditions, as evidenced
by his signature on the final page of the contract.

      Cleveland argues that the contract does not empower SGB and Seidel to
unilaterally compel arbitration. Cleveland contends that he cannot be compelled to
arbitrate because the arbitration clause in the contract uses permissive wording,
stating that the parties “may” submit disputes to arbitration. Cleveland asserts that
the parties were “permitted” but not “required” to agree mutually at some point in
the future to pursue arbitration. According to Cleveland, this interpretation is
evidenced by the circumstances surrounding the formation of the contract. In
support of his argument, Cleveland submitted the parties’ redlined draft of the
contract, negotiating the replacement of “shall” with “may” in Section 17(c).
Cleveland also maintains that U.S. Home Corp., is inapposite because it involved
two agreements, one of which contained a mandatory arbitration clause. Cleveland
distinguishes U.S. Home Corp. by asserting that the contract in this case requires the
parties to subsequently agree to arbitrate. Finally, Cleveland contends that Section
25 of the contract does not dictate arbitration, but “only identifies a procedural
structure (i.e., “binding” versus “non-binding”) for a means of resolving existing
disputes,” and is considered after the question of arbitrability is resolved.

      We agree with SGB and Seidel that arbitration was required. The plain
language of Section 17(c) creates a valid and enforceable mandatory arbitration
clause that unambiguously provides that either party may request arbitration.
Nothing in the contract suggests arbitration was optional if either side requested it.4

      4
          The cases relied upon by Cleveland expressly require the parties to commit to arbitration
                                                 8
Hence, as interpreted by this court’s precedent, this clause constitutes a binding
promise to arbitrate if either party requested it. See Feldman/Matz Interests, LLP v.
Settlement Capital Corp., 140 S.W.3d 879, 888 (Tex. App.—Houston [14th Dist.]
2004, no pet) (“may” submit language is mandatory for arbitration).                             In
Feldman/Matz Interests, LLP, the court explained its interpretation of the “may”
submit clause as follows:

       That is merely another way of saying that either party may require the
       other to arbitrate—not a limitation on how a party may invoke
       arbitration. Secondly, although the agreement stated that either party
       “may” submit disagreements to arbitration, a number of the federal
       circuits—including the Fifth Circuit—have interpreted similar
       language to mean that either party has the power to require arbitration.
       See, e.g., Deaton Truck Line, Inc., v. Local Union 612, 314 F.2d 418
       (5th Cir. 1962); Austin v. Owens–Brockway Glass Container, Inc., 78
       F.3d 875, 879 (4th Cir.), cert. denied, 519 U.S. 980, 117 S. Ct. 432, 136
       L.Ed.2d 330 (1996); Ceres Marine Terminals, Inc. v. Int'l
       Longshoremen’s Ass’n, Local 1969, 683 F.2d 242, 246–47 (7th Cir.
       1982); Local 771, I.A.T.S.E., AFL–CIO v. RKO Gen., Inc., 546 F.2d
       1107, 1116 (2d Cir. 1977); Bonnot v. Cong. of Indep. Unions Local No.
       4, 331 F.2d 355, 359 (8th Cir. 1964). Thus, generally, an agreement to
       arbitrate is mandatory even though it contains permissive terms such as
       “may.” This interpretation supports the federal scheme to encourage
       arbitration. We see no reason to depart from the reasoning of these
       cases.
Id.; see In re U.S. Home Corp., 236 S.W.3d at 765 (holding clause that permitted
either party to request arbitration and did not require permission from other to be



and allow one party to reject such a request. See Tex. Health Res. v. Kruse, No. 05-13-01754-CV,
2014 WL 3408636, at *3 (Tex. App.—Dallas July 11, 2014, pet. denied) (arbitration provision
required both parties to subsequently “commit” to arbitration); Travelers Indem. Co. v. Tex. Mun.
League Joint Self-Ins. Fund, No. 01-08-00062-CV, 2008 WL 2756874, at *2 (Tex. App.—Houston
[1st Dist.] July 17, 2008, no pet.) (after one party requested arbitration, arbitration provision
required the other party to accept or reject the request). Here, the contract does not contain this
language. Rather, the operative language provides that claims “may be submitted to binding
arbitration.”

                                                9
mandatory); see also Hanover Ins. Co. v. Kiva Lodge Condo. Owners’ Ass’n, Inc.,
221 So. 3d 446, 453–54 (Ala. 2016) (“Most cases throughout the country. . .[find]
that use of the term “may” in an arbitration provision generally does not denote
permissive arbitration because the arbitration clause would be meaningless.”)
(citations omitted). Moreover, this construction harmonizes and gives effect to
Section 25 of the contract, wherein Cleveland acknowledges “binding arbitration of
disputes.”

       To the extent Cleveland introduced a redlined draft the contract demonstrating
changes Cleveland made to the contract before it was executed, such evidence
should not have been considered by the trial court as it is precluded by the parol
evidence rule. The parol evidence rule is a rule of substantive law. Lewis v. Adams,
979 S.W.2d 831, 836 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (citations
omitted). The parol evidence rule provides that the terms of a written contract cannot
be contradicted by evidence of an earlier, inconsistent agreement.5 Id.

       Additionally, a written instrument presumes that all prior agreements relating
to the transaction have been merged into it and will be enforced as written and cannot
be added to, varied, or contradicted by parol testimony. Smith v. Smith, 794 S.W.2d
823, 827 (Tex. App.—Dallas 1990, no pet.). The rule is particularly applicable when
the written contract contains a recital that it contains the entire agreement between
the parties or a similarly-worded merger provision. Weinacht v. Phillips Coal Co.,
673 S.W.2d 677, 679 (Tex. App.—Dallas 1984, no writ). Here, the merger clause



       5
            In his brief, Cleveland argues that “[t]he Contract unambiguously provides solely for
permissive arbitration.” Thus, any exception permitting admissibility of parol evidence when a
writing is ambiguous is not applicable in this case. See Gonzalez v. United Broth. Of Carpenters
and Joiners of Am., Local 551, 93 S.W.3d 208, 211 (Tex. App.—Houston [14th Dist.] 2002, no
pet.) (setting forth exceptions to parol evidence rule when extrinsic evidence may be shown to be
admissible).

                                               10
in Section 25 of the contract prohibits Cleveland from relying on his redlined draft
to alter the terms of the contract.

      Cleveland attempts to avoid preclusion of his extrinsic evidence (i.e., prior
redlined draft) by arguing the Texas Supreme Court’s recent decision in First Bank
v. Brumitt permits the trial court to consider the circumstances surrounding the
formation to discern the meaning of an unambiguous contract. See 519 S.W.3d 95,
110 (Tex. 2017) (“[T]he parol-evidence rule does not prohibit consideration of
surrounding circumstances that inform, rather than vary from or contradict, the
contract text.” (internal citations omitted)). This case does not fall within the ambit
of Brummit. Cleveland’s suggested construction adds a requirement that is not set
forth in the contract, i.e., it requires Cleveland to consent or agree to arbitrate any
claims, disputes, or questions that SGB and Seidel have requested to arbitrate.
Brumitt clearly prohibits extrinsic evidence for such a purpose. “Extrinsic evidence
cannot be used to show that the parties probably meant, or could have meant,
something other than what their agreement stated.” Id. at 110 (citation omitted).
“[C]ourts may not rely on evidence of surrounding circumstances to make the
language say what it unambiguously does not say.” Id. The trial court in this case
could not rely on extrinsic evidence to create an intent that the contract itself does
not express. Id.

      Because a valid and enforceable arbitration agreement exists and the claims
at issue fall within the scope of the agreement, the trial court abused its discretion in
denying SGB and Seidel’s motions to compel arbitration.             See Feldman/Matz
Interests, LLP, 140 S.W.3d at 888. Accordingly, we sustain SGB’s and Seidel’s
issues.

                                      III.   Conclusion

      We reverse the trial court’s orders denying SGB’s and Seidel’s motions to
                                              11
compel arbitration and remand for further proceedings consistent with this opinion
and compelling arbitration.



                                     /s/    John Donovan
                                            Justice


Panel consists of Justices Christopher, Donovan, and Jewell (Christopher, J.,
dissenting).




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