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Advanced Foundation Repair, L.P. v. Menendez

Court of Appeals of Texas, Fourth District, San Antonio

July 31, 2019

ADVANCED FOUNDATION REPAIR, L.P. and Structural Repair, LLC, Appellants
v.
José MENENDEZ and Nicole Newman-Menendez, Appellees

          From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2017CI02654 Honorable Norma Gonzales, Judge Presiding

          Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice

          MEMORANDUM OPINION

          PATRICIA O. ALVAREZ, JUSTICE

         In this dispute over foundation repairs to a house, Appellants moved to compel arbitration against the current homeowners, but the trial court denied the motion.

         Because Appellants failed to meet their threshold burden to establish the existence of a valid arbitration agreement, we affirm the trial court's order.

         Background

         In 2005, Robert and Sandra Reyna had a home built for them by S.A. Cypress Homes, Ltd. After the home was built, Advanced Foundation Repair, L.P. performed some foundation repairs on the home.

         In October 2016, the Reynas sold the home to José Menendez and Nicole Newman-Menendez. In the sales negotiations, the Reynas informed the Menendezes that Advanced Foundation Repair, L.P. and Structural Repair, LLC (collectively Advanced Foundation) had performed foundation repairs to the home. In February 2017, after the home allegedly experienced more foundation issues, the Menendezes sued the homebuilder and its affiliates for damages.

         In January 2019, the Menendezes filed their sixth amended original petition, their live pleading. It includes several claims against Advanced Foundation including defective design, inspection, and construction of a partial piering system.

         The next day, Advanced Foundation filed a motion to compel arbitration. At the hearing on the motion to compel arbitration, Advanced Foundation argued, inter alia, that the arbitration provision in an Agreement between Advanced Foundation and Cypress Homes required the Menendezes to arbitrate their claims.

         The Menendezes resisted arbitration by noting that, inter alia, Advanced Foundation had not met its burden to establish the existence of a valid arbitration agreement because the Menendezes were not parties to the Agreement, no one had signed the Agreement, and the Agreement required the contract to be "signed by all Owners" and returned to Advanced Foundation by a specific date to be binding.

         The trial court denied the motion to compel arbitration and Advanced Foundation appeals. We begin by briefly reciting the applicable law and standard of review.

         Applicable Law

         "Arbitration is a creature of contract between consenting parties." Jody James Farms, JV v. Altman Grp., Inc., 547 ...


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