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Geo-Tech Foundation v. Leggett

Court of Appeals of Texas, Second District, Fort Worth

March 30, 2017

GEO-TECH FOUNDATION REPAIR APPELLANT
v.
TERRY LEGGETT APPELLEE

         FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY TRIAL COURT NO. 2015-006367-2

          PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.

          MEMORANDUM OPINION [1]

          TERRIE LIVINGSTON CHIEF JUSTICE.

         In one issue, appellant Geo-Tech Foundation Repair (Geo-Tech) appeals the trial court's interlocutory order denying a motion to compel arbitration.[2] Geo-Tech contends that it seeks to enforce a mandatory arbitration provision contained in the parties' contract and that appellee Terry Leggett cannot show that Geo-Tech has waived its entitlement to arbitration. Leggett contends that the record does not include any competent evidence of a valid agreement to arbitrate and that Geo-Tech's delay in demanding arbitration justified the trial court's denial of the motion to compel arbitration. We reverse and remand.

         Background Facts

         In November 2015, Leggett sued Geo-Tech for breach of contract. Leggett alleged that in April 2011, the parties had entered into an agreement for Geo-Tech to perform foundation work on Leggett's Fort Worth home. Leggett alleged that Geo-Tech had performed the work improperly and had attempted, but had failed, to correct problems that resulted from the deficient performance. Leggett asserted that Geo-Tech had "breached its contract . . . for the performance of services, to-wit, repair to the foundation of [Leggett's] home." In his petition, Leggett sought damages of $40, 000 plus attorney's fees under the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (West 2015). Geo-Tech filed an answer in which it asserted a general denial and pled for costs and attorney's fees.

         Six months after filing its answer, in May 2016, Geo-Tech filed a motion to compel arbitration under section 171.021 of the civil practice and remedies code. See id. § 171.021(a). In the motion, Geo-Tech contended that the parties had entered into a contract for foundation repair of Leggett's home in April 2011 and that the contract had the following clauses:

Owner and Contractor agree that any dispute, or lawsuit related in any way to this agreement or the work related thereto, shall be resolved by mandatory and binding arbitration administered by the American Arbitration Association (AAA) in accordance with this arbitration agreement and under the commercial arbitration rules of the AAA . . . .
. . . .
In the event that the Owner and Contractor cannot agree that the movement in the foundation has been controlled and settlement is within the tolerances specified above, it is specifically agreed by acceptance of this warranty that the matter shall be determined by binding arbitration administered by the American Arbitration Association (AAA) in accordance with this arbitration agreement and under the commercial arbitration rules of the AAA . . . .

         To the motion, Geo-Tech attached a copy of the parties' contract that contains the provisions above and represented that the attachment was a "true copy, " although Geo-Tech's motion was not sworn. The contract recites Leggett's name, address, and signature; states an amount that Leggett agreed to pay Geo-Tech; includes a date; and illustrates the proposed foundation repair.

         Leggett responded to Geo-Tech's motion to compel arbitration. He argued that Geo-Tech had waived its right to demand arbitration because of its delay in doing so and because of his prejudice caused by the delay. He conceded that the arbitration clause in the parties' contract "purport[ed] to allow [Geo-Tech] to . . . arbitrate the complaints raised by [Leggett]." He argued, however, that the trial court should not reward Geo-Tech's "dilatory tactics" by granting arbitration. Leggett did not object to the contract that Geo-Tech attached to its motion to compel or contest Geo-Tech's assertions that the parties had entered into a contract and that the contract had contained the arbitration provisions quoted above.

         After Geo-Tech replied to Leggett's response, the trial court denied Geo-Tech's motion to compel arbitration. Geo-Tech brought this appeal.

         Motion to Compel Arbitration

         Geo-Tech contends that the trial court erred by denying the motion to compel arbitration. In their briefing to this court, the parties focus on two disputes: (1) whether Geo-Tech was required to authenticate the contract that it attached to its motion to compel in the trial court (and whether Leggett was required to object to any failure to authenticate the contract as a prerequisite to arguing lack of authentication ...


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