        



                   IN THE SUPREME COURT OF TEXAS
                                                         ══════════
                                                          No. 17-0062
                                                         ══════════

                                     JODY JAMES FARMS, JV, PETITIONER

                                                              V.


                 THE ALTMAN GROUP, INC. AND LAURIE DIAZ, RESPONDENTS

               ══════════════════════════════════════════
                             ON PETITION FOR REVIEW FROM THE
                    COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS
               ══════════════════════════════════════════

                                                    Argued March 20, 2018

       JUSTICE GUZMAN delivered the opinion of the Court.

       JUSTICE JOHNSON did not participate in the decision.


       Arbitration is a creature of contract between consenting parties.1 Nevertheless, as may be

required by principles of contract law and agency,2 a person who has agreed to arbitrate disputes

with one party may be required to arbitrate related disputes with non-parties.3 This, however, is

not one of those cases.

       Determining whether a claim involving a non-signatory must be arbitrated is a gateway

matter for the trial court, not the arbitrator, which means the determination is reviewed de novo



                                                      
       1
           Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 479 (1989).
       2
           See, e.g., In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 738 (Tex. 2005).
       3
           Meyer v. WMCO-GP, LLC, 211 S.W.3d 302, 304 (Tex. 2006).



        
          



rather than with the deference that must be accorded to arbitrators. Applying the appropriate

standard of review, we hold the lower courts erroneously required a signatory to arbitrate its

non-contractual claims against non-signatories. We therefore vacate the arbitrator’s take-nothing

award and remand the case to the trial court for further proceedings.

                                                           I. Background

         Jody James Farms, JV purchased a Crop Revenue Coverage Insurance Policy from

Rain & Hail, LLC, through the Altman Group, an independent insurance agency. The insurance

policy, which was reinsured by the Federal Crop Insurance Corporation (FCIC) under the authority

of the Federal Crop Insurance Act,4 contains an arbitration clause in section 20(a):

         If you and we fail to agree on any determination made by us except those specified
         in section 20(d), the disagreement may be resolved through mediation in
         accordance with section 20(g). If resolution cannot be reached through mediation,
         or you and we do not agree to mediation, the disagreement must be resolved through
         arbitration in accordance with the rules of the American Arbitration Association
         (AAA), except as provided in sections 20(c) and (f), and unless rules are established
         by FCIC for this purpose. Any mediator or arbitrator with a familial, financial or
         other business relationship to you or us, or our agent or loss adjuster, is disqualified
         from hearing the dispute.5

The policy defines “us” and “we” as referring to the insurer (Rain & Hail) and “you” as referring

to the named insured (Jody James). Neither the Altman Group nor any of its employees is

expressly named in the policy, and neither the Altman Group nor any of its employees signed the

agreement.




                                                        
         4
             See 7 U.S.C. § 1508(h).
         5
           Section 20(c) establishes the binding nature of arbitration, subject to judicial review. Section 20(d) governs
certain disagreements involving the FCIC. And section 20(f) explains how to resolve conflicts between the contract
and other laws.



                                                                2 
        



       This dispute follows Rain & Hail’s denial of coverage for a grain sorghum crop loss Jody

James suffered. Though Jody James claims it promptly called an Altman Group agent, Laurie

Diaz, to report the loss, Rain & Hail denied the claim on several bases, including that Jody James

“failed to provide a timely notice of damage which has resulted in [Rain & Hail’s] inability to

make necessary and required loss determinations for indemnity under your . . . policy.”

       Jody James disagreed with Rain & Hail’s coverage determination, so the parties arbitrated

the dispute as required by the insurance policy. Jody James lost. The arbitrator agreed with

Rain & Hail that Jody James did not “timely present[] notice of its claim in accordance with the

provisions of the crop insurance policy” and, further, “did not state a presentable loss” because

crops from performing and non-performing farm units were commingled.

       Based on the adverse arbitration ruling, Jody James sued the Altman Group and Diaz

(collectively, the Agency) for breach of fiduciary duty and deceptive-trade practices.6 Jody James

asserts the Agency’s failure to timely submit the crop-loss claim resulted in denial of coverage and

a $68,000 pecuniary loss. Jody James seeks damages equal to the amount of the loss, plus

attorney’s fees and interest.

       The Agency moved to compel arbitration under the insurance policy, which Jody James

opposed and the trial court granted. Following an unsuccessful motion for reconsideration, the

case proceeded to arbitration where Jody James continued to assert its right to proceed in court

against the Agency, a non-signatory to the arbitration agreement. The arbitrator resolved that issue

and the merits of the dispute in the Agency’s favor, issuing a take-nothing arbitration award.




                                                      
       6
           See TEX. BUS. & COMM. CODE §§ 17.41-.506.



                                                         3 
         



        The Agency asked the trial court to confirm and enforce the arbitrator’s award, while Jody

James moved to vacate it, again asserting that no valid arbitration agreement exists between the

parties. The trial court’s final judgment confirmed the award, denied Jody James’s motion, and

denied the Agency’s request for attorney’s fees. Applying a deferential standard of review to the

arbitrator’s determinations, the court of appeals affirmed.7

        We granted Jody James’s petition for review, which challenges the arbitrator’s authority to

determine whether a non-signatory can compel a signatory to arbitrate.

                                                          II. Discussion

        Jody James and the Agency disagree about (1) whether the Agency is liable for Jody

James’s loss; (2) whether they agreed to arbitrate the merits of that issue; and (3) whether the trial

court or the arbitrator should decide whether they agreed to arbitrate the merits. The third matter—

who answers the question of arbitrability—is the primary focus of this appeal. Jody James asserts

that the trial court must determine, as a threshold matter, whether an arbitration agreement exists

between it and the Agency. The Agency argues it makes no difference who actually holds the

power to determine arbitrability, because both the trial court and the arbitrator concluded Jody

James must arbitrate.

        We disagree with the Agency. Who may properly adjudicate arbitrability is critical to

ascertaining the appropriate standard of review. A trial court’s arbitrability determinations are

reviewed de novo,8 while an arbitrator’s determinations are entitled to deference.9 Under the



                                                       
        7
            506 S.W.3d 595, 600 (2016).
        8
          In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009); J.M. Davidson, Inc. v. Webster, 128 S.W.3d
223, 227 (Tex. 2003).
        9
            See First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943 (1995).



                                                                4 
          



Federal Arbitration Act, an arbitration award must be confirmed except in extremely limited

circumstances, such as corruption, fraud, undue means, evident partiality, and lack of authority.10

The answer to the third question is thus significant and ultimately dispositive of this appeal,

because it controls the standard of review we apply in evaluating the arbitrator’s authority.

                                                     A. Standard of Review

         Whether parties have agreed to arbitrate is a gateway matter ordinarily committed to the

trial court11 and controlled by state law governing “the validity, revocability, and enforceability of

contracts generally.”12 Parties can, however, agree to arbitrate arbitrability. Arbitration is a matter

of contract, and that which the parties agree must be arbitrated shall be arbitrated.13 A presumption

favors adjudication of arbitrability by the courts absent clear and unmistakable evidence of the

parties’ intent to submit that matter to arbitration.14 The unmistakable clarity standard follows

“the principle that a party can be forced to arbitrate only those issues it specifically has agreed to

submit to arbitration” and protects unwilling parties from compelled arbitration of matters they

reasonably expected a judge, not an arbitrator, would decide.15

         The court of appeals held that an arbitration agreement incorporating the American

Arbitration Association (AAA) rules evinces clear and unmistakable intent to arbitrate arbitrability

because the AAA rules declare that an “arbitrator shall have the power to rule on his or her own


                                                        
         10
              9 U.S.C. § 10.
         11
              In re Rubiola, 334 S.W.3d 220, 224 (Tex. 2011).
         12
            Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 631 (2009) (quoting Perry v. Thomas, 482 U.S. 483, 493
n.9 (1987)).
         13
              First Options, 514 U.S. at 943.
         14
           Id. at 944; see 9 U.S.C. § 4 (the court shall order the parties to arbitration “upon being satisfied that the
making of the agreement for arbitration . . . is not in issue”).
         15
              First Options, 514 U.S. at 945.



                                                              5 
          



jurisdiction, including any objections with respect to the existence . . . of the arbitration agreement

or to the arbitrability of any claim or counterclaim.”16 Jody James and Rain & Hail’s arbitration

agreement expressly incorporates the AAA rules, so the court of appeals applied a “narrow and

deferential review” to the arbitrator’s determination that Jody James’s claims against the Agency

were arbitrable.17

         While such deference may be the consequence of incorporating the AAA rules in disputes

between signatories to an arbitration agreement,18 which we need not decide, the analysis is

necessarily different when a dispute arises between a party to the arbitration agreement and a

non-signatory. As to that matter, Texas courts differ about whether an arbitration agreement’s

mere incorporation of the AAA rules shows clear intent to arbitrate arbitrability.19 We hold it does

not. Even when the party resisting arbitration is a signatory to an arbitration agreement, questions


                                                        
         16
           506 S.W.3d 595, 599 (2016) (citing Chesapeake Appalachia, LLC v. Scout Petrol., LLC, 809 F.3d 746,
763 (3d Cir. 2016); Oracle Am., Inc. v. Myriad Grp., A.G., 724 F.3d 1069, 1074 (9th Cir. 2013); Petrofac, Inc. v.
DynMcDermott Petrol. Ops. Co., 687 F.3d 671, 675 (5th Cir. 2012); Fallo v. High-Tech Inst., 559 F.3d 874, 878 (8th
Cir. 2009); Qualcomm Inc. v. Nokia Corp., 466 F.3d 1366, 1372-73 (Fed. Cir. 2006); Terminix Int’l Co. v. Palmer
Ranch Ltd. P’ship, 432 F.3d 1327, 1332-33 (11th Cir. 2005); Contec Corp. v. Remote Sol. Co., 398 F.3d 205, 208 (2d
Cir. 2005)); see also AM. ARBITRATION ASS’N COMMERCIAL ARBITRATION RULES R-7(a), (b) (2017). Amendments
to the AAA rules since this dispute arose are not germane to its disposition. Accordingly, we cite the current rules for
convenience.
         17
              506 S.W.3d at 599-600.
          18
             See Oracle, 724 F.3d at 1071 (addressing an arbitration clause in a license agreement signed by both parties
in the dispute); Petrofac, 687 F.3d at 675 (“[T]he parties expressly incorporated into their arbitration agreement the
AAA rules.”); Fallo, 559 F.3d at 876 (reviewing an arbitration agreement between plaintiff students and defendant
school); Qualcomm, 466 F.3d at 1368, 1372-73 (reviewing an agreement between appellant and appellees); Terminix,
432 F.3d at 1332-33 (same); c.f. Contec, 398 F.3d at 207 (reviewing an arbitration clause in Agreement signed by
predecessor corporations of the plaintiff and defendant).
         19
             Compare Jody James Farms, 506 S.W.3d at 599-600 (finding clear and unmistakable evidence), and
Rent-A-Ctr. Tex., L.P. v. Bell, No. 09-16-00085-CV, 2016 WL 4499093, at *4 (Tex. App.—Beaumont Aug. 25, 2016,
no pet.) (mem. op.) (finding clear and unmistakable evidence “to delegate gateway issues of arbitrability to the
arbitrator, including the arbitrability of David’s claim even though he is a non-signatory”), with Leshin v. Oliva,
No. 04-14-00657-CV, 2015 WL 4554333, at *6 (Tex. App.—San Antonio July 29, 2015, no pet.) (mem. op.) (finding
no clear and unmistakable evidence to arbitrate arbitrability in dispute involving a non-signatory), and Elgohary v.
Herrera, 405 S.W.3d 785, 791-92 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (same), and Roe v. Ladymon, 318
S.W.3d 502, 517 (Tex. App.—Dallas 2010, no pet.) (same).



                                                           6 
          



related to the existence of an arbitration agreement with a non-signatory are for the court, not the

arbitrator.

         The involvement of a non-signatory is an important distinction because a party cannot be

forced to arbitrate absent a binding agreement to do so.20 The question is not whether Jody James

agreed to arbitrate with someone, but whether a binding arbitration agreement exists between Jody

James and the Agency. What might seem like a chicken-and-egg problem is resolved by

application of the presumption favoring a judicial determination.21 A contract that is silent on a

matter cannot speak to that matter with unmistakable clarity, so an agreement silent about

arbitrating claims against non-signatories does not unmistakably mandate arbitration of

arbitrability in such cases.22

         To the extent Jody James and Rain & Hail’s agreement expressed any intent to arbitrate

arbitrability, it did so only with respect to one another. Jody James’s agreement with Rain & Hail

requires disagreements to “be resolved through arbitration in accordance with the rules of the

[AAA]” only “[i]f [Jody James] and [Rain & Hail] fail to agree on any determination made by

[Rain & Hail].” The insurance policy directly incorporates the AAA rules only for these disputes,

not for disputes between Jody James and unspecified third parties. The contract also does not

“expressly provide[] that certain non-signatories are considered parties” or otherwise expressly


                                                        
         20
            United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960) (“[A]rbitration is a matter of
contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.”).
         21
            If an arbitrator must determine whether a valid arbitration agreement exists as to the parties before it, a
conundrum arises: “[A]n arbitrator would be put in the position of deciding whether he was authorized to decide the
parties’ dispute, concluding either that he was not authorized, a logical circularity, or that he was, and raising himself
by his own bootstraps.” In re Morgan Stanley & Co., Inc., 293 S.W.3d 182, 193 (Tex. 2009) (Hecht, J., dissenting).
The presumption favoring a judicial determination, outlined in First Options, resolves this conundrum. By requiring
clear and unmistakable evidence before an arbitrator may decide the question of arbitrability, the arbitrator is
empowered by something more than “his own bootstraps.”
         22
              See First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995).



                                                            7 
          



extend the contract’s benefits to third parties.23 And no agreement between Jody James and the

Agency incorporates the AAA rules as to disputes between them.24

         Given the absence of clear and unmistakable evidence that Jody James agreed to arbitrate

arbitrability in disputes with non-signatories, compelled arbitration cannot precede a judicial

determination that an agreement to arbitrate exists. The trial court was therefore charged with

determining whether a valid agreement to arbitrate exists between Jody James and the Agency

before any issue may be referred to arbitration. We review the resolution of that question de novo,

because arbitrators lack authority to resolve a dispute absent a valid arbitration agreement.25

                                                           B. Analysis

         Who is bound by an arbitration agreement is normally a function of the parties’ intent, as

expressed in the agreement’s terms.26                      Courts have also articulated six scenarios in which

arbitration with non-signatories may be required: (1) incorporation by reference, (2) assumption,

(3) agency, (4) alter ego, (5) equitable estoppel, and (6) third-party beneficiary.27 The Agency

argues the insurance policy’s language mandates arbitration here and, alternatively, that agency,




                                                        
         23
              In re Rubiola, 334 S.W.3d 220, 225 (Tex. 2011).
         24
              See Petrobras Am., Inc. v. Vicinay Cadenas, S.A., 921 F. Supp. 2d 685, 693 (S.D. Tex. 2013).
         25
           9 U.S.C. § 10 (explaining that courts may vacate arbitration awards “where the arbitrators exceeded their
powers”); Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 682 (2010) (“[A]n arbitrator derives his or her
powers from the parties’ agreement.”).
         26
            Rubiola, 334 S.W.3d at 224 (quoting Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 345 F.3d 347, 355, 358
(5th Cir. 2003)).
         27
              In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 739 (Tex. 2005).



                                                                8 
         



third-party-beneficiary, and estoppel theories preclude Jody James from avoiding arbitration even

though the Agency is a non-signatory.

        1. The Insurance Policy

        When relying on a contract to compel arbitration, the moving party must first establish the

existence of a valid and enforceable arbitration agreement.28 Second, the claims at issue must fall

within the arbitration agreement’s scope.29 Whether a non-signatory may enforce an arbitration

agreement’s terms is a question within the first element.30

        Section 20(a) of the crop insurance policy requires a “disagreement to be resolved through

arbitration.” “[D]isagreement” occurs when “[Jody James] and [Rain & Hail] fail to agree on any

determination made by [Rain & Hail].” The arbitration agreement’s text does not reference any

other disagreement, such as disagreements between Jody James and another person or entity.

        This litigation centers on the Agency’s alleged failure to inform Rain & Hail of Jody

James’s insurance claim in a timely manner, which is not a disagreement between Rain & Hail and

Jody James. This suit does not arise from a disagreement between Rain & Hail and Jody James;

indeed, the claims against the Agency actually embrace and depend on Rain & Hail’s

determination that the claim was late. Section 20(a) thus does not require Jody James to arbitrate

this dispute with the Agency.

        The Agency, however, cites the first sentence in subsection 20(a)(1) as supporting a much

broader application of the policy’s arbitration agreement. Subsection 20(a)(1) is a subpart of



                                                       
        28
           See G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 525 (Tex. 2015); In re FirstMerit
Bank, N.A., 52 S.W.3d 749, 753 (Tex. 2001).
        29
             FirstMerit Bank, 52 S.W.3d at 753.
        30
             G.T. Leach Builders, 458 S.W.3d at 525.



                                                          9 
           



section 20(a), in which the general arbitration agreement resides. Subsection 20(a)(1) reads as

follows:

          All disputes involving determinations made by us, except those specified in
          subsection 20(d), are subject to mediation or arbitration. However, if the dispute
          in any way involves a policy or procedure interpretation, regarding whether a
          specific policy provision or procedure is applicable to the situation, how it is
          applicable, or the meaning of any policy provision or procedure, either you or we
          must obtain an interpretation from FCIC in accordance with 7 CFR part 400,
          subpart X or such other procedures as established by FCIC.

Reading the words of subsection 20(a)(1)’s first sentence “in the context in which they are used,”31

we first observe that it is structurally constrained to the scope of arbitration in Section 20(a), to

which it is appended. Second, the first sentence must be considered in light of subsection (a)(1)’s

remainder, which is devoted to restricting the scope of arbitration in a specific manner. Construed

in context, subsection (a)(1) is thus a limiter, not an expander. This reading accords with the

interpretive canon that “[m]aterial within an indented subpart relates only to that subpart.”32 The

context of the entire contract confirms the same; when referring to arbitration elsewhere, the

insurance policy consistently treats arbitration as pertaining to Rain & Hail and Jody James

without expressing any broader application.

          Subsection 20(a)(1) is not itself an arbitration agreement; instead, it only describes how far

the agreement reaches. The parties must arbitrate “[a]ll disputes” within the arbitration agreement

except pure “policy or procedure interpretation[s],”33 but those disputes only fall within the scope

of the agreement if there is a valid arbitration agreement in the first instance.

                                                         
          31
               URI, Inc. v. Kleberg Cty., ___ S.W.3d ___, 2018 WL 1440148, at *7 (Tex. 2018).
          32
               ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION                OF   LEGAL TEXTS 156
(2012).
          33
           The parties do not argue the FCIC must interpret any policy or procedure, and we agree FCIC review is
not implicated by the issues in this case. 7 C.F.R. part 400, subpart X, which the insurance contract cites as the
authority for FCIC interpretations, clarifies the applicability of the FCIC’s interpretative powers and duties. The


                                                            10 
          



         A valid arbitration agreement exists for disagreements between Jody James and

Rain & Hail, but the insurance policy cannot be reasonably read to encompass disagreements

between the signatories and other parties. Accordingly, we turn to alternative theories for

compelling arbitration.

         2. Agency

         “[A] contracting party generally cannot avoid unfavorable clauses by suing the other

party’s agents.”34 Thus, an agent of a signatory may sometimes invoke an arbitration clause

against another signatory.35 To establish an agency relationship, a non-signatory must show it was

subject to the principal signatory’s control and authorized to act as its agent.36

         The record does not support the conclusion that Rain & Hail had control over the Agency’s

actions in relaying a claim from Jody James to Rain & Hail. The Agency points to the insurance

contract’s references to the “insurance agent,” but mere references do not create an agency

relationship; the touchstone is control.37 Because Rain & Hail did not exercise control over the

Agency, arbitration cannot be compelled on that basis.




                                                        
parties may obtain “a final agency determination of the interpretation of any provision of the [Federal Crop Insurance]
Act or the regulations promulgated thereunder.” 7 C.F.R. § 400.765(a). Furthermore, the “FCIC will not interpret
any specific factual situation or case, such as actions of any participant under the terms of a policy or any reinsurance
agreement.” Id. § 400.768(a). This case calls for an interpretation of the insurance contract as it applies to the “specific
. . . case” between Jody James and the Agency; accordingly, the FCIC-interpretation clause is inapplicable.
         34
              In re Kaplan Higher Educ. Corp., 235 S.W.3d 206, 209 (Tex. 2007).
         35
              See id.
         36
            See Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 697 (Tex. 2017) (“To establish an
agency relationship, one must show a manifestation of consent by the purported agent to act on the principal’s behalf
and subject to the principal’s control, together with a manifestation of consent by the purported principal authorizing
his agent to act.”); Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 589 (Tex. 2017) (“Authority to act on the
principal’s behalf and control are the two essential elements of agency.”).
         37
              See Exxon Mobil Corp., 520 S.W.3d at 589.



                                                            11 
         



        3. Third-Party-Beneficiary Status

        Like other contracts, arbitration agreements may also be enforced by third-party

beneficiaries, so long as “the parties to the contract intended to secure a benefit to that third party

and entered into the contract directly for the third party’s benefit.”38 The benefit must be more

than incidental, and the contracting parties’ intent to “confer a direct benefit to a third party must

be clearly and fully spelled out or enforcement by the third party must be denied.”39 Whether “the

third party intended or expected to benefit from the contract” is irrelevant, because “only the

‘intention of the contracting parties in this respect is of controlling importance.’”40 As a matter of

interpretation, a mere description of the contract’s intended use cannot—on its own—confer

third-party-beneficiary status.41

        The contract between Jody James and Rain & Hail does not facially benefit the Agency,

but the Agency gleans an intended benefit by reading the contract in the context of the Federal

Crop Insurance Act, which sets out guidelines for the FCIC’s administration of the Act.42 The

FCIC’s board must “encourage the sale of Federal crop insurance through licensed private

insurance agents . . . , in which case the agent . . . shall be reasonably compensated from premiums




                                                       
         38
            In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 677 (Tex. 2006); see also In re NEXT Fin. Grp., Inc.,
271 S.W.3d 263, 267 (Tex. 2008) (ruling that securities brokerage firm could compel arbitration based on arbitration
agreement in application for securities industry registration signed by plaintiff employee because the brokerage firm
was “a clearly intended third-party beneficiary”).
        39
             MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999).
        40
           First Bank v. Brumitt, 519 S.W.3d 95, 102 (Tex. 2017) (quoting Banker v. Breaux, 128 S.W.2d 23, 24
(Tex. 1939)).
        41
             S. Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 306-07 (Tex. 2007).
        42
             See 7 U.S.C. § 1507(c).



                                                          12 
        



paid by the insured for such sales and renewals recognizing the function of the agent . . . to provide

continuing services while the insurance is in effect.”43

       But as the Agency concedes, the statute’s language is nothing more than a statement of

intent. A statement of intent is not enough, and no other language in the statute or the contract

provides direct benefits to the Agency. The insurer might pay the Agency for continuing service

throughout the life of the insurance policy, but the agreement between Jody James and Rain & Hail

makes no provision for making any such payments nor even identifies any amount owed to the

Agency. The Federal Crop Insurance Act intends general beneficence for insurance agents, but

nothing more.

       The circumstances here are comparable to South Texas Water Authority v. Lomas,44 in

which we held that the City of Kingsville’s citizens were not third-party beneficiaries to a

water-supply contract between Kingsville and the South Texas Water Authority.45 The water

authority’s enabling legislation stated its purpose was to act “for the benefit of the people of this

state,”46 and the water-supply contract at issue specified that the water’s intended use was for

municipal and industrial customers.47 The contract did not, however, identify any of the specific

citizens claiming third-party beneficiary status, and we held the citizens were not third-party

beneficiaries because “general beneficence does not create third-party rights.” 48 The same is true




                                                      
       43
            Id.
       44
            223 S.W.3d 304 (Tex. 2007).
       45
            Id. at 306.
       46
            Id. at 307.
       47
            Id. at 306.
       48
            Id.



                                                         13 
         



here. The contract between Jody James and Rain & Hail does not express an intent to make the

insurance agency a direct beneficiary. Any benefit to the Agency is, at best, indirect and incidental.

        4. Estoppel

        We have recognized equitable estoppel as a basis for compelling arbitration, and the

Agency contends, as its principal argument, that Jody James is estopped from resisting arbitration

of its claims. Our arbitration-estoppel jurisprudence is rooted in a theory of promissory estoppel:

“When a promisor induces substantial action or forbearance by another, promissory estoppel

prevents any denial of that promise if injustice can be avoided only by enforcement.”49 Estoppel

in the arbitration context is based on principles of contract and agency and does not create a

requirement to arbitrate where none existed before.50 Estoppel simply “‘prevents a party from

insisting upon his strict legal rights when it would be unjust to allow him to enforce them.’”51 In

that spirit, we have recognized and applied the doctrine of direct-benefits estoppel,52 which the

Agency asserts requires arbitration in this case. The Agency also urges that an “alternative

estoppel theory” applies, notwithstanding our past reluctance to adopt novel formulations of

estoppel to compel arbitration.53




                                                       
        49
             In re Weekley Homes, L.P., 180 S.W.3d 127, 133 (Tex. 2005).
        50
             In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 738 (Tex. 2005).
        51
             Weekley Homes, 180 S.W.3d at 133 (quoting Wheeler v. White, 398 S.W.2d 93, 96 (Tex. 1965)).
        52
             Id. at 131, 134 (citing Kellogg Brown & Root, 166 S.W.3d at 741).
        53
           See, e.g., In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 191-95 (Tex. 2007) (declining to recognize
“concerted-misconduct estoppel”); see also G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 529
(Tex. 2015) (“[T]he fact that the claims would not have arisen but for the existence of the general contract is not
enough to establish equitable estoppel.”).



                                                          14 
        



       a. Direct-Benefits Estoppel

       Direct-benefits estoppel applies to parties who seek “to derive a direct benefit” from a

contract with an arbitration agreement.54 This estoppel theory precludes a plaintiff from seeking

to hold the non-signatory liable based on the terms of an agreement that contains an arbitration

provision while simultaneously asserting the provision lacks force because the defendant is a

non-signatory.55 Simply put, a person “cannot both have his contract and defeat it too.”56 When

a claim depends on the contract’s existence and cannot stand independently—that is, the alleged

liability “arises solely from the contract or must be determined by reference to it”57—equity

prevents a person from avoiding the arbitration clause that was part of that agreement.58 But “when

the substance of the claim arises from general obligations imposed by state law, including statutes,

torts and other common law duties, or federal law,” direct-benefits estoppel is not implicated even

if the claim refers to or relates to the contract or would not have arisen “but for” the contract’s

existence.59

       In the archetypal direct-benefits case, the party opposing arbitration seeks to enforce the

terms of an agreement with an arbitration clause. In Rachal v. Reitz,60 for instance, we held a trust

beneficiary’s suit to remove the trustee was arbitrable even though the beneficiary did not sign the




                                                      
       54
            G.T. Leach Builders, 458 S.W.3d at 527 (internal quotation marks omitted).
       55
            Id.
       56
            Weekley Homes, 180 S.W.3d at 135.
       57
            Id. at 132.
       58
            G.T. Leach Builders, 458 S.W.3d at 527-28.
       59
            Id. at 528.
       60
            403 S.W.3d 840 (Tex. 2013).



                                                         15 
        



trust agreement.61 Though the complainant could not allege a contract claim, the lawsuit was

nevertheless premised on the trustee’s alleged violation of the trust’s terms.62 The trustee sought

to compel arbitration based on the trust’s arbitration provision, and we agreed arbitration was

required.63 By pressing a lawsuit that was necessarily based on the trust’s terms and validity, the

beneficiary was barred by direct-benefits estoppel from avoiding the trust’s arbitration provision.64

       In comparison, we held in G.T. Leach Builders v. Sapphire V.P.65 that a mere relationship

between the signatory’s claims and the contract containing an arbitration provision was not enough

to compel a signatory to arbitrate claims against third parties under a direct-benefits estoppel

theory.66 The signatory, Sapphire V.P., was the developer of a hurricane-damaged condominium

project. Sapphire sued several insurance brokers, alleging they allowed an insurance policy to

expire shortly before the hurricane. Sapphire also sued the project’s general contractor and

engineers for negligent construction.67 Each party had a separate contract with Sapphire, but only

the general contract had an arbitration provision.68

       Sapphire was obligated to arbitrate its claims against the general contractor based on its

agreement to do so in the general contract,69 and the insurance brokers and engineers argued they

were similarly entitled to arbitrate Sapphire’s claims against them under a direct-benefits estoppel


                                                      
       61
            Id. at 842, 847-48.
       62
            Id.
       63
            Id. at 842.
       64
            Id. at 847.
       65
            458 S.W.3d 502 (Tex. 2015).
       66
            Id. at 527-30.
       67
            Id. at 509-10.
       68
            Id. at 510, 523.
       69
            Id.



                                                         16 
        



theory.70 Sapphire’s allegations against the engineers and insurance brokers, however, relied on

duties under their separate contracts for engineering and insurance services, respectively.71 Even

though Sapphire’s claims against the engineers and insurance brokers might not have existed but

for the general contract to construct the condominium project, those claims relied on duties

independent from it.72 Because the claims did not depend on the general contract, direct-benefits

estoppel did not apply.73

       Like Sapphire’s allegations against the engineers and insurance brokers, Jody James’s

claims are independent of the insurance policy. Jody James might seek a measure of loss that

equates to the amount of a contract loss, but direct-benefits estoppel does not apply simply because

“the claim refers to . . . the contract.”74 Instead, liability “‘must be determined by reference to

it.’”75 Rather than relying on the insurance policy, Jody James’s complaint premises the Agency’s

liability on tort and DTPA duties that are general, non-contract obligations.

       To establish a fiduciary relationship, Jody James must prove a relationship between the

parties involving “a high degree of trust and confidence . . . prior to, and apart from” the insurance

contract.76 A fiduciary duty generally “arises from the relationship of the parties and not from the




                                                      
       70
            Id. at 527, 529.
       71
            Id. at 528-29.
       72
            See id.
       73
            Id.
       74
            Id. at 528 (emphasis added).
       75
            Id. (quoting In re Weekley Homes L.P., 180 S.W.3d 127, 132 (Tex. 2005)).
       76
            Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 176-77 (Tex. 1997).



                                                         17 
         



contract.”77       Likewise, DTPA claims are created by statute,78 and “a DTPA claim for

misrepresentation is considered separate and distinct from any breach of contract.”79

        This is not a case of mere artful pleading.80 The insurance policy does not impose any

duties or obligations on the Agency. At most, by permitting Jody James to report claims through

an insurance agent, the policy may assume that an Agency has a pre-existing duty to follow through

in filing an insurance claim. But without contractually mandated duties, Jody James would be

unable to maintain a contract claim against the Agency under the insurance policy even if it were

inclined to do so. Instead of enforcing expectations created by contract, any liability is necessarily

extra-contractual. Accordingly, direct-benefits estoppel has not been shown here.

        b. “Alternative Estoppel Theory”

        The Agency also relies on the Second Circuit Court of Appeals’ “alternative estoppel

theory,”81 also referred to as an “intertwined-claims” theory, to support compelled arbitration.82

Under this estoppel theory, non-signatories can successfully compel arbitration when (1) they have

a “close relationship” with a signatory to a contract with an arbitration agreement and (2) the

claims are “intimately founded in and intertwined with the underlying contract obligations.”83 In

In re Merrill Lynch Trust Co., we acknowledged the existence of this theory without deciding its



                                                       
        77
             Manges v. Guerra, 673 S.W.2d 180, 183 (Tex. 1984) (emphasis added).
        78
           See TEX. BUS. & COMM. CODE § 17.43 (“The remedies provided in this subchapter are in addition to any
other procedures or remedies provided for in any other law.”).
        79
             Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 270-71 (Tex. 1992).
         80
            Cf. Weekley Homes, 180 S.W.3d at 131-32 (“[W]hether a claim seeks a direct benefit from a contract
containing an arbitration clause turns on the substance of the claim, not artful pleading.”).
        81
             Merrill Lynch Inv. Mgrs. v. Optibase, Ltd., 337 F.3d 125, 131 (2d Cir. 2003).
        82
             See In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 193 (Tex. 2007).
        83
             Thomas-CSF, S.A. v. Am. Arbitration Ass’n, 64 F.3d 773, 779 (2d Cir. 1995).



                                                          18 
         



validity in Texas.84 Since then, the Fifth Circuit Court of Appeals has predicted we would adopt

this estoppel formulation.85 We need not consider the viability of such a theory in this case,

because even if we were to embrace it, the Agency has not shown its applicability.

        The Second Circuit carefully limited the alternative estoppel theory’s application,

explaining its precedent does not “mean that whenever a relationship of any kind may be found

among the parties to a dispute and their dispute deals with the subject matter of an arbitration

contract made by one of them, that party will be estopped from refusing to arbitrate.”86 Rather,

“the obligation to arbitrate depends on consent”; alternative estoppel requires not only a dispute

intertwined with the contract but also a relationship between the parties that developed in a manner

that makes it “unfair” not to compel arbitration.87

        In defining any form of arbitration estoppel, we are guided by similar concerns. Like the

Second Circuit, we focus on the principle that arbitration is “a matter of consent, not coercion.”88

This is why, when defining the contours of direct-benefits estoppel, we have insisted the doctrine

cannot “create liability for noncontracting parties that does not otherwise exist.”89 More recently,

we rejected the even looser concerted-misconduct estoppel theory, because the FAA is only meant

“to make arbitration agreements ‘as enforceable as other contracts, but not more so.’”90 Any


                                                       
        84
             See 235 S.W.3d at 193 (using the theory as an example of how other federal circuit courts treat estoppel).
        85
          Hays v. HCA Holdings, Inc., 838 F.3d 605, 612 (5th Cir. 2016); see also Cotton Comm’l USA, Inc. v. Clear
Creek Indep. Sch. Dist., 387 S.W.3d 99, 105 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
        86
             Sokol Holdings, Inc. v. BMB Munai, Inc., 542 F.3d 354, 359 (2d Cir. 2008).
        87
             Id. at 358, 361.
        88
          Merrill Lynch Trust, 235 S.W.3d at 192 (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford
Junior Univ., 489 U.S. 468, 479 (1989)).
        89
             In re Weekley Homes, L.P., 180 S.W.3d 127, 134 (Tex. 2005).
        90
           Merrill Lynch Trust, 235 S.W.3d at 192 (quoting Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388
U.S. 395, 404 n.12 (1967)).



                                                           19 
         



arbitration doctrine forcing an unwilling party into arbitration must thus have some basis in

fairness and consent.

        Regardless of how intertwined Jody James’s claims are with the insurance policy, which

is a matter of debate, the relationship between the Agency and Rain & Hail is not close enough to

imply any consent by Jody James to arbitrate this lawsuit. Concerns for consent and fairness

mandate a particularly close relationship to invoke alternative estoppel.91 The Second Circuit’s

alternative-estoppel cases compelling arbitration typically involve some corporate affiliation

between a signatory and non-signatory,92 not just a working relationship. In contrast, the Agency’s

relationship to Rain & Hail is no closer than that of any other independent broker or salesman.

The Agency, Jody James, and Rain & Hail may have an entangled business relationship with

respect to the crop-insurance transaction, but no evidence, nor even allegations, show them to be

anything other than independent and distinct entities. A reasonable consumer would not anticipate

being forced to litigate complaints against an independent insurance agent in the same manner they

agreed to litigate disputes with the insurer. To compel arbitration based on this alternative-estoppel

theory, the relationship must be closer than merely independent participants in a business

transaction.




                                                       
          91
             See Sokol Holdings, 542 F.3d at 361 (“In each case, the promise to arbitrate by x, the entity opposing
arbitration, was reasonably seen on the basis of the relationships among the parties as extending not only to y, its
contractual counterparty, but also to y1, an entity that was, or would predictably become, with x’s knowledge and
consent, affiliated or associated with y in such a manner as to make it unfair to allow x to avoid its commitment to
arbitrate on the ground that y1 was not the very entity with which x had a contract.”).
        92
             See id. at 359-61 (surveying cases).



                                                          20 
        



                                           III. Conclusion

       No party may be compelled to arbitrate unless they have agreed to arbitrate or are bound

by principles of agency or contract law to do so. Jody James and the Agency did not agree to

arbitrate any matter—not the question of arbitrability and not the merits of this dispute. Nor may

Jody James be compelled to arbitrate under agency, third-party-beneficiary, or estoppel theories.

We therefore reverse the court of appeals’ judgment, vacate the arbitration award, and remand to

the trial court for further proceedings.




                                                       _______________________________
                                                       Eva M. Guzman
                                                       Justice


OPINION DELIVERED: May 11, 2018




                                                 21 
