                                                 In The

                                         Court of Appeals
                             Ninth District of Texas at Beaumont
                                          _________________

                                         NO. 09-12-00324-CV
                                         _________________

                AL JONES AND AL JONES ARCHITECT, AIA, LLC, Appellants

                                                   V.

           BRENT L. MAINWARING AND TATAYANA MAINWARING, Appellees

______________________________________________________________________

                     On Appeal from the 172nd District Court
                             Jefferson County, Texas
                            Trial Cause No. E-185,627
________________________________________________________________________

                                 MEMORANDUM OPINION

       In this interlocutory appeal, we are asked to determine whether the trial court erred

in refusing Al Jones’s and Al Jones Architect, AIA, LLC’s1 motion to compel arbitration.

Brent and Tatayana Mainwaring hired architects to design and supervise the construction

of their new home. The architectural agreement between the architects and the

Mainwarings provides that “[a]ny claim, dispute or other matter in question arising out of

or related to this Agreement shall be subject to arbitration.”



       1
           For convenience, we refer to the appellants together as the architects.
                                                    1
       After they became aware of various problems with their home during its

construction, the Mainwarings sued the architects and several other defendants, seeking

to recover actual damages, punitive damages, attorney’s fees, interest, and costs. In

response to the lawsuit, the architects filed a motion asking the trial court to enforce the

arbitration provision in the parties’ architectural agreement. The Mainwarings resisted

arbitration, arguing that the arbitration agreement was not enforceable because Al Jones,

when the parties entered the architectural agreement, was not a licensed architect in the

State of Texas. The Mainwarings also argued that the choice-of-law provision in the

architectural agreement, which provided that Louisiana law governed the agreement, was

unconscionable.

       We conclude that the defenses the Mainwarings have raised concern the validity of

the architectural agreement as a whole. Consequently, the defenses that the Mainwarings

have asserted are matters for the arbitrator, as the defenses do not prevent the contract’s

arbitration clause from being enforced. The Mainwarings have also argued, in the

alternative, that if the arbitration clause is enforceable that the architects waived their

right to arbitrate. We disagree, because we hold the architects’ litigation conduct has not

resulted in a waiver of their right to enforce the arbitration provision at issue. Because

the Mainwarings failed to establish in the trial court that the dispute was not arbitrable,

we conclude the trial court abused its discretion in denying the architects’ motion to

compel arbitration. We reverse the trial court’s order denying the motion to compel


                                                2
arbitration, and we remand the case to the trial court, requiring it to order the dispute with

the architects to arbitration.

                                     Standard of Review

       We review the denial of a motion to compel arbitration under an abuse of

discretion standard. See Okorafor v. Uncle Sam & Assocs., Inc., 295 S.W.3d 27, 38 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied.). “A party attempting to compel arbitration

must first establish that the dispute in question falls within the scope of a valid arbitration

agreement.” J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003) (citing In

re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex.1999)). “If the other party

resists arbitration, the trial court must determine whether a valid agreement to arbitrate

exists.” Id.; Tex. Civ. Prac. & Rem. Code Ann. § 171.021 (West 2011). “Whether a given

arbitration clause imposes a duty to arbitrate is a matter of contract interpretation and a

question of law for the court.” Tex. Petrochemicals LP v. ISP Water Mgmt. Servs, LLC,

301 S.W.3d 879, 884 (Tex. App.—Beaumont 2009, no pet.). As that is a question of

contract interpretation, it is a question that is reviewed de novo. Id. (citing McReynolds v.

Elston, 222 S.W.3d 731, 740 (Tex. App. —Houston [14th Dist.] 2007, no pet.). If the trial

court finds that a valid arbitration agreement exists, the burden then shifts to the party

opposing arbitration to raise an affirmative defense to enforcing arbitration. J.M.

Davidson, Inc., 128 S.W.3d at 227.




                                                  3
       In its order denying the architects’ motion to compel, the trial court did not state

why it refused to compel the Mainwarings and the architects to arbitrate their dispute.

Additionally, no party requested findings of fact, and the trial court did not issue findings

of fact or conclusions of law. Because this appeal proceeds without the benefit of the trial

court’s express findings, the trial court is presumed to have made all findings that are

necessary to support its judgment. See Tex. R. Civ. P. 299.

                        Existence of a valid arbitration agreement

       In issue one, the architects contend that the architectural agreement contains a

valid arbitration agreement and that the Mainwarings’ claims are arbitrable under the

parties’ agreement. The Mainwarings’ suit is based, in large part, on the architects’

alleged acts and omissions under the architectural agreement. The arbitration clause in

the architectural agreement is broad, providing that the parties were required to arbitrate

“[a]ny claim, dispute or other matter in question arising out of or related to this

Agreement[.]” The record demonstrates that the architects established that an arbitration

agreement exists and that, if valid, the Mainwarings’ claims fall within the scope of the

matters to be arbitrated. See J.M. Davidson, Inc., 128 S.W.3d at 227.

       In the trial court, the Mainwarings raised four defenses to the architects’ motion to

compel, arguing:

              The architectural agreement could not be enforced because Al Jones did not
              have a Texas architect’s license when the contract was performed;



                                                 4
               The architects expressly waived any right to arbitration by agreeing to
               litigate the case in the 172nd District Court;

               The architects waived their right to arbitrate by substantially invoking the
               litigation process, to the Mainwarings prejudice; and

               The arbitration provision could not be enforced because it is
               unconscionable.

      First, we address whether Al Jones’s failure to register with the Texas Board of

Architectural Examiners is a defense to the arbitration provision in the architectural

agreement. To practice architecture in Texas, architects are generally required to be

registered with the Texas Board of Architectural Examiners. See Tex. Occ. Code Ann. §

1051.701 (West 2012) (prohibiting practice of architecture without registering with the

Texas Board of Architectural Examiners). According to the Mainwarings, because Al

Jones was not registered with the Texas Board of Architectural Examiners, their

architectural agreement with Jones is void and unenforceable.

      In response, the architects contend that the arbitration provision in the agreement

remains enforceable, even if it is later determined by the arbitrator that the agreement is

unenforceable.2 In summary, the architects contend that the arbitration provision is

severable from the remaining agreement, making it enforceable even if the remainder of

the agreement proves later to be unenforceable.

      The United States Supreme Court has held that for purposes of determining the

validity of an arbitration provision within an otherwise unenforceable agreement, the

      2
          We express no opinion on the validity of the agreement as a whole.
                                                  5
contract’s arbitration provision is severable from the remainder of the contract. Buckeye

Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444-45, 126 S.Ct. 1204, 163 L.Ed.2d

1038 (2006); see also Esecuritel Holdings, LLC v. Youghiogheny Commc’ns-Tex., LLC,

2012 Tex. App. LEXIS 10017, at *19 (Tex. App.—San Antonio Dec. 5, 2012, no pet. h.)

(mem. op.) (claim that agreement was unenforceable because a party was not licensed in

Texas did not defeat arbitration). In Buckeye, the Supreme Court held that “regardless of

whether the challenge is brought in federal or state court, a challenge to the validity of a

contract as a whole, and not specifically to the arbitration clause, must go to the

arbitrator.” Id. at 449. The Supreme Court explained that when a party “challenge[s] the

Agreement, but not specifically its arbitration provisions, those provisions are

enforceable apart from the remainder of the contract. The challenge should therefore be

considered by an arbitrator, not a court.”3 Id. at 446.

       We hold that the arbitration clause in the architectural agreement is severable from

the remainder of the agreement. In the trial court, and on appeal, the Mainwarings have

also argued that enforcing the arbitration agreement would be unconscionable. According

to the Mainwarings, the agreement is unconscionable because it contains a Louisiana



       3
        The Texas Supreme Court followed Buckeye’s reasoning when presented with
similar issues in the following cases: In re Olshan Found. Repair Co., LLC, 328 S.W.3d
883, 898 (Tex. 2010); In re Morgan Stanley & Co., 293 S.W.3d 182, 186 (Tex. 2009); In
re Labatt Food Serv., L.P., 279 S.W.3d 640, 647-48 (Tex. 2009); Perry Homes v. Cull,
258 S.W.3d 580, 589 (Tex. 2008); In re Kaplan Higher Educ. Corp., 235 S.W.3d 206,
210 (Tex. 2007); and In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 190 (Tex.
2007).
                                                  6
choice-of-law provision, allowing Jones, a Louisiana resident, advantages that he would

not otherwise have under Texas law. Also, the Mainwarings argue that the agreement is

unconscionable because it “attempts to take away [the Mainwarings’] substantive rights

and remedies provided under Texas law.”

        In Texas, choice-of-law provisions in contracts as well as arbitration agreements

are generally enforceable. See In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 678

(Tex.   2006)     (“There       is    nothing    inherently unconscionable       about   arbitration

agreements[.]”); Autonation Direct.Com, Inc. v. Thomas A. Moorhead, Inc., 278 S.W.3d

470, 472 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (stating that where the parties

contractually agreed to apply the law of Virginia to their contract, “Texas courts will

respect that choice and apply the law the parties chose”). The choice-of-law provision at

issue is not located in the agreement’s arbitration provision; rather, it is located in the

miscellaneous provisions that pertain to the parties’ architectural agreement as a whole.

Also, the choice-of-law provision does not specifically relate to the arbitration clause.

        The Texas Supreme Court, explaining how unconscionability can impact an

agreement    to    arbitrate,        has   stated:   “[I]n   considering   an   arbitration   clause,

unconscionability ‘must specifically relate to the [arbitration clause] itself, not the

contract as a whole, if [unconscionability is] to defeat arbitration.’” In re Odyssey

Healthcare, Inc., 310 S.W.3d 419, 422 n.1 (Tex. 2010) (quoting In re FirstMerit Bank,

N.A., 52 S.W.3d 749, 756 (Tex. 2001)). We conclude that the Mainwarings’


                                                         7
unconscionability argument relates to the contract as a whole, and not specifically to the

arbitration clause. We express no opinion on whether the contract as a whole is

unconscionable, as the parties’ agreement is sufficiently broad to indicate they intended

to arbitrate the issue of unconscionability. See id.

       In conclusion, we are not persuaded that the arbitration provision in the

architectural agreement is unenforceable. We hold that the architects met their burden to

demonstrate in the trial court that the parties’ agreement contained a valid arbitration

provision. See J.M. Davidson, Inc., 128 S.W.3d at 227.

                                 Waiver of right to arbitrate

       In issue two, the architects address the issue of waiver, which the Mainwarings

raised as an affirmative defense to the enforcement of the arbitration provision.

According to the Mainwarings, the architects waived their right to arbitrate by agreeing to

litigate the case in the trial court, by agreeing to reinstate the case following an abatement

required by the Texas Residential Construction Liability Act,4 by agreeing to a



       4
        See Tex. Prop. Code Ann. § 27.004 (West Supp. 2012) (Texas Residential
Construction Liability Act). In 2011, another defendant in this case petitioned for
mandamus relief from the trial court, arguing that the trial court abused its discretion by
compelling discovery while the case was abated by operation of law. See In re Anderson
Const. Co., 338 S.W.3d 190, 192 (Tex. App.—Beaumont 2011, orig. proceeding). We
conditionally granted relief, abating the case to allow the Mainwarings to comply with
the notice and inspection requirements of the Texas Residential Construction Liability
Act. Id. at 197. We ordered the trial court to refrain from proceeding with the case until
the Mainwarings complied with the Residential Construction Liability Act’s notice and
inspection requirements. Id.

                                                  8
continuance of an April 2012 trial setting, and by engaging in discovery, all of which the

Mainwarings contend substantially invoked the litigation process.

       The standards required to establish a claim of waiver with respect to an arbitration

provision are clearly established. “[A] party waives an arbitration clause by substantially

invoking the judicial process to the other party’s detriment or prejudice.” Perry Homes,

258 S.W.3d at 589-90. Whether a party has participated in the litigation process to the

extent that it will be held to have waived the right to arbitrate is a question of law for the

court. See id. at 587. “There is a strong presumption against waiver of arbitration, but it is

not irrebuttable[.]” Id. at 584. In considering whether a party has waived its rights to

arbitrate, the Texas Supreme Court has considered the following factors:

              when the movant knew of the arbitration clause;

              how much discovery has been conducted;

              who initiated the discovery;

              whether the discovery related to the merits rather than arbitrability or
              standing;

              how much of the discovery would be useful in arbitration; and

              whether the movant sought judgment on the merits.


Id. at 591-92 (footnotes omitted). Additionally, a party’s “[w]aiver of arbitration rights

may be express or implied.” Okorafor, 295 S.W.3d at 39. “Express waiver arises when a

party affirmatively indicates that it wishes to resolve the case in the judicial forum, rather


                                                  9
than arbitration.” Id. Implied waiver arises when a party acts inconsistently with the right

to arbitrate and prejudices the opposing party. Id.

       According to the Mainwarings, the architects expressly waived their arbitration

rights by agreeing to reinstate the case and by agreeing to continue the case. In their

brief, the Mainwarings contend that the situation here is similar to the facts at issue in In

re Citigroup Global Mkts., Inc., 202 S.W.3d 477 (Tex. App.—Dallas 2006, orig.

proceeding), mand. granted, 258 S.W.3d 623 (Tex. 2008). In Citigroup, the Dallas Court

of Appeals concluded that Citigroup had expressly waived its right to arbitrate by

removing the case to federal court, where it was transferred to a federal multidistrict

litigation court. Citigroup, 202 S.W.3d at 484. The Dallas Court of Appeals, in reaching

its conclusion, relied primarily on Citigroup’s federal court pleadings that stated it

desired to pursue the case in a judicial forum to explain why it had removed the case to

federal court and sought to have it transferred. Id. However, the Texas Supreme Court

disagreed with the Dallas Court’s conclusion that Citigroup expressly waived arbitration,

stating that Citigroup never expressly waived or objected to arbitration and that

Citigroup’s statements in various transfer pleadings were required by statute to justify the

transfer. See In re Citigroup Global Mkts., Inc., 258 S.W.3d 623, 626 (Tex. 2008) (orig.

proceeding).

       In this case, it is not necessary to decide whether statements in pleadings related to

a parties’ desire to have a court resolve a dispute might suffice to establish an express


                                                10
waiver of a right to arbitrate. The architects have filed no pleadings like those filed in

Citigroup. Nothing in the agreed order reinstating the case following its abatement or in

the parties’ agreed motion to continue reflects that the architects expressly waived any of

their rights under the architectural agreement, including their right to arbitrate. See In re

Fleetwood Homes of Tex., L.P., 257 S.W.3d 692, 694 (Tex. 2008) (holding that several

letters that concerned an impending trial and an offer to request an agreed trial setting did

not amount to an express waiver). We conclude that the architects have not expressly

waived their right to arbitrate by agreeing to reinstate the case following abatement or by

agreeing to a continuance.

       The Mainwarings also argue that the architects’ conduct amounts to an implied

waiver of their right to arbitrate. According to the Mainwarings, implied waiver arises

because the architects substantially invoked the litigation process by filing an answer,

engaging in pre-trial discovery, participating in a deposition, joining in an agreed motion

to reinstate the case, and joining in an agreed motion to continue the case.

       It is undisputed that the architects filed an answer, the parties exchanged written

discovery, and that the architects participated in a single deposition taken at the

Mainwarings’ request. However, in the agreed motion to continue the case, the parties

stated that discovery was not complete. In April 2012, the Mainwarings filed a Second

Amended Petition, adding two additional defendants to the multiple individuals and

entities being sued. Approximately one week later, the architects asked the trial court to


                                                11
compel arbitration. In July 2012, by filing a third amended petition, the Mainwarings

added four more defendants to their suit. In light of the number of parties and issues

involved in the dispute, as well as the comparatively small amount of discovery done

given the number of parties involved, we conclude that the architects have not

substantially invoked the judicial process.

       The Texas Supreme Court has stated that “[m]erely taking part in litigation is not

enough unless a party ‘has substantially invoked the judicial process to its opponent’s

detriment.’” In re Vesta Ins. Grp., Inc., 192 S.W.3d 759, 763 (Tex. 2006) (quoting In re

Serv. Corp. Int’l, 85 S.W.3d 171, 174 (Tex. 2002)). In Perry Homes, the Supreme Court

held that “‘allowing a party to conduct full discovery, file motions going to the merits,

and seek arbitration only on the eve of trial’” is sufficient to show waiver. 258 S.W.3d at

590 (quoting Vesta Ins. Grp., 192 S.W.3d at 764). However, “requesting an initial round

of discovery, noticing (but not taking) a single deposition, and agreeing to a trial

resetting[]” is not sufficient to show waiver. Id. at 590 (citing EZ Pawn Corp. v. Mancias,

934 S.W.2d 87, 90 (Tex. 1996) (concluding no waiver where party had answered the suit,

sent interrogatories and request for production, and entered into an agreed order resetting

the case for a later trial date)). The Supreme Court has also held that litigating for two

years in the trial court, participating in discovery, and noticing four depositions did not

waive arbitration. See Vesta Ins. Grp., 192 S.W.3d at 763.




                                               12
      The record before us shows:

              The parties recognized in their March 2012 correspondence regarding an
              agreed continuance that discovery was not substantially complete.

              The architects’ discovery consisted of written discovery to the
              Mainwarings; however, because the discovery is not in the record before
              us, we are unable to determine whether the architects conducted significant
              discovery on the merits as the Mainwarings contend in their brief

              The architects did not seek to compel arbitration on the eve of trial, as the
              parties had recently agreed to continue the case to complete discovery.

              The architects did not file motions in the trial court addressing the merits
              of the Mainwarings’ claims.

              The architects first appeared as parties in December 2010, and the case was
              abated less than three months later.

              The case was abated between March 2011 and October 2011, based on the
              requirements of the Texas Residential Construction Liability Act. See Tex.
              Prop. Code Ann. § 27.004(d).

              Although the Mainwarings incurred attorney’s fees, they did not
              demonstrate in the trial court that the fees they incurred were significantly
              related to the architects’ written discovery, nor did they establish that the
              architects’ written discovery was extensive or addressed the merits of the
              dispute.

              The architects first asked the trial court to compel arbitration on April 18,
              2012, approximately six months after the case was reinstated; therefore,
              the record shows a nine month delay before asking the trial court to
              compel arbitration.

      We conclude that the activities of the architects did not substantially invoke the

litigation process. See Perry Homes, 258 S.W.3d at 591-92; Vesta Ins. Grp., 192 S.W.3d

at 763-64. Instead, the record shows that the architects were merely taking part in the


                                               13
litigation process. See Vesta Ins. Grp., 192 S.W.3d at 763-64. We hold the conduct

shown in this case does not establish implied waiver. See Fleetwood Homes, 257 S.W.3d

at 694-95 (concluding that eight months delay not sufficient to overcome the strong

presumption against waiver); Vesta Ins. Grp., 192 S.W.3d at 763 (concluding that two

years delay not sufficient to overcome the strong presumption against waiver); EZ Pawn,

934 S.W.2d at 89-90 (concluding that ten months delay not sufficient to overcome the

strong presumption against waiver).

      Because a valid arbitration clause exists and the architects have not waived their

right to arbitration, we hold that the trial court abused its discretion in denying the

architects’ motion to compel arbitration. We reverse the trial court’s order, remand this

case to the trial court, and instruct the trial court to enter an order compelling the

arbitration of the dispute between the architects and the Mainwarings.

      REVERSED AND REMANDED.




                                                       ___________________________
                                                              HOLLIS HORTON
                                                                    Justice


Submitted on October 17, 2012
Opinion Delivered December 20, 2012
Before McKeithen, C.J., Gaultney and Horton, JJ.




                                               14
