Court of Appeals of Texas, Second District, Fort Worth
COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY TRIAL COURT NO.
LIVINGSTON, C.J.; WALKER and MEIER, JJ.
MEMORANDUM OPINION 
LIVINGSTON CHIEF JUSTICE.
issue, appellant Geo-Tech Foundation Repair (Geo-Tech)
appeals the trial court's interlocutory order denying a
motion to compel arbitration. 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.
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
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 . . . .
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.
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.
Geo-Tech replied to Leggett's response, the trial court
denied Geo-Tech's motion to compel arbitration. Geo-Tech
brought this appeal.
to Compel Arbitration
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