Court of Appeals of Texas, Fourth District, San Antonio
ADVANCED FOUNDATION REPAIR, L.P. and Structural Repair, LLC, Appellants
José MENENDEZ and Nicole Newman-Menendez, Appellees
the 285th Judicial District Court, Bexar County, Texas Trial
Court No. 2017CI02654 Honorable Norma Gonzales, Judge
Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa,
Justice Beth Watkins, Justice
PATRICIA O. ALVAREZ, JUSTICE
dispute over foundation repairs to a house, Appellants moved
to compel arbitration against the current homeowners, but the
trial court denied the motion.
Appellants failed to meet their threshold burden to establish
the existence of a valid arbitration agreement, we affirm the
trial court's order.
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
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.
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
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.
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.
trial court denied the motion to compel arbitration and
Advanced Foundation appeals. We begin by briefly reciting the
applicable law and standard of review.
is a creature of contract between consenting parties."
Jody James Farms, JV v. Altman Grp., Inc., 547