StrucSure Home Warranty, LLC v. Danica Mathes and Michael Sessa, Raul Ruiz, 2RH Brothers Properties, LLC, CLAY STAPP+CO, Elton Johnson, Homestead Concepts, LLC, Homestead Concepts, Inc. ( 2023 )

AFFIRMED and Opinion Filed July 17, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01214-CV
STRUCSURE HOME WARRANTY, LLC, Appellant
V.
2RH BROTHERS PROPERTIES, LLC, Appellee
On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-13529
MEMORANDUM OPINION
Before Justices Nowell, Goldstein, and Breedlove
Opinion by Justice Nowell
This interlocutory appeal arises from the trial court’s denial of a motion to
compel a non-signatory to a limited home warranty (Limited Warranty) to arbitrate
under the Federal Arbitration Act. In two issues, appellant StrucSure Home
Warranty, LLC contends the trial court erred by denying his motion to compel
appellee 2RH Brothers Properties, LLC to arbitrate because (1) 2RH’s third-party
claims against StrucSure necessarily seek the benefits of the Limited Warranty and
cannot be determined without reference to it, and (2) 2RH served as the builder’s
agent in procuring the Limited Warranty; therefore, 2RH is bound by the arbitration
provision. We affirm the trial court’s order denying StrucSure’s motion to compel
arbitration.
Background
Focis LLC/Focis Holding Group, LLC and CWC Clean with Care d/b/a CWC
Restoration and Construction built the majority of a home located on Belmont
Avenue in Dallas, Texas. On March 26, 2019, 2RH entered into a “Construction
Completion Agreement” with Elton Johnson and Homestead Concepts (Homestead)
to finish the home. The home was approximately ninety percent complete at that
time. Upon completion, 2RH and Raul Ruiz, as realtor, listed the home for sale.
On August 2, 2019, Danica and Michael Sessa entered into a “New Home
Contract” with 2RH and Ruiz for $1,050,000. As part of the New Home Contract,
2RH promised to provide a “Builder’s 1-2-10 Warranty at closing.” 2RH contacted
StrucSure to purchase the Limited Warranty.
StrucSure is the creator and administrator of the nationwide StrucSure Home
Warranty Program, which provides new home warranty coverage against certain
types of homebuilder construction defects. Homebuilders apply to StrucSure for
admission into the program and upon gaining membership and paying an individual
enrollment fee, a homebuilder is issued a StrucSure Warranty.
On August 22, 2019, StrucSure sent Ruiz, as the authorized agent of 2RH, an
email describing what was needed for the Sessas’ home to be enrolled in the
warranty program, including copies of the city green tags. Ruiz responded that all
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green tags had been transferred to Homestead, and Johnson would be submitting the
necessary documents. On September 27, 2019, the Sessas signed the enrollment
application listing Homestead as the builder. StrucSure approved the home for
enrollment in the warranty program with the provided green tags and builder
information. 2RH purchased the Limited Warranty for $3,412.50, and StrucSure
issued the Certificate of Warranty on October 1, 2019.
Shortly after closing on the home, the Sessas experienced numerous problems.
In November 2019, the Sessas submitted a Notice of Claim to StrucSure, which
StrucSure denied after conducting an investigation and inspection of the home.
In July 2020, the Sessas learned Johnson and Homestead were not the original
homebuilders but that 2RH hired them to complete construction of the home. The
Sessas then sent letters to 2RH, Ruiz, Homestead, and Johnson regarding the home’s
deficiencies. On September 30, 2020, counsel for 2RH sent notice that it was “not
responsible for any requested repairs to the Property,” and emphasized the Sessas
had the “benefit of a home warranty,” which 2RH purchased for the Sessas’ benefit.
StrucSure, however, refused to honor its obligations under the Limited Warranty
because it contended Homestead and Johnson were not the “builder[s]” of the home.
The Sessas filed their original petition against 2RH and Ruiz for fraud in a
real estate transaction, fraud by misrepresentation, fraud by concealment, fraudulent
inducement, fraud by nondisclosure, negligence, breach of express warranty,
violations of the DTPA, breach of contract regarding warranty and repairs, and civil
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conspiracy. The Sessas alleged “shoddy construction, poor workmanship, improper
installation, and incorrectly performed repairs,” led to numerous issues with the
home causing them to “effectively [live] in a construction zone.”
2RH and Ruiz filed an original answer generally denying the allegations and
asserting numerous affirmative defenses. 2RH also filed a third-party petition
against StrucSure because StrucSure failed to honor the 10-year portion of the
Limited Warranty.
StrucSure filed a plea in abatement and motion to compel arbitration against
2RH. It argued all matters should be referred to mandatory binding arbitration “in
accordance with the arbitration agreement that is part of the Express Limited
Warranty that [2RH] seeks to enforce.” The Limited Warranty included, in relevant
part, the following arbitration provision:
The parties to this Express Limited Warranty intend and agree that any
and all claims, disputes and controversies by or between the
Homeowner, the Builder, the Administrator, and/or the Insurer, or any
combination of the foregoing, arising out of or related to this Express
Limited Warranty, any alleged Defect and/or Deficiency in or to the
subject Home or the real property on which the subject Home is
situated, or the sale of the subject Home by the Builder, including,
without limitation, any claim of breach of contract, negligent or
intentional misrepresentation, or nondisclosure in the inducement,
execution, or performance of any contract, including this arbitration
agreement, or breach of any alleged duty of good faith and fair dealing,
shall be settled by binding arbitration in a manner consistent with this
arbitration agreement. Agreeing to arbitration means You are waiving
Your right to a trial by a judge and/or a jury.
StrucSure maintained that 2RH should be forced to arbitrate its third-party claims
based on the doctrine of direct-benefits estoppel and agency. StrucSure attached the
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affidavit of Glenn Cleek, Claims Counsel, to its brief in support, along with several
other documents.
2RH filed a response to StrucSure’s motion to compel arbitration and argued
it was not subject to arbitration because (1) it is not a party to the Limited Warranty;
(2) it is not seeking any benefit under the Limited Warranty; and (3) it is not an agent
of Homestead. 2RH contended that if the Sessas’ claims are ultimately meritorious,
then StrucSure is liable to 2RH for breach of contract; however, the contract
breached would be StrucSure’s agreement to provide the Limited Warranty for
$3,412.50, not a breach of the Limited Warranty itself.
StrucSure filed a reply arguing 2RH is “clearly seeking the benefits of the
Warranty.” It emphasized that 2RH stated in its third-party petition that “the
Property was ultimately approved for the warranty program, and the Warranty was
purchased by 2RH for $3,412.50 (the ‘Agreement’).” (Emphasis in original).
The trial court held a hearing on October 6, 2022. StrucSure continued to
argue 2RH sued for breach of the Limited Warranty and should be required to
arbitrate despite being a non-signatory. The trial court; however, said it did not “see
it that way”:
It seems to me that the - - in the third party petition that the agreement
is described as the agreement between StrucSure and 2RH to procure
the warranty for the benefit of the homeowners, but not that the
agreement and the warranty are the same thing. And further, as I
understand it, the arbitration clause is in the warranty not in the
agreement to procure or to provide a warranty to the homeowners.
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On November 2, 2022, the trial court signed an order denying StrucSure’s
motion to compel arbitration in its entirety. This appeal followed.
Standard of Review
We review the denial of a motion to compel arbitration for an abuse of
discretion, deferring to the trial court on factual determinations that are supported by
the evidence and reviewing legal determinations de novo. Henry v. Cash Biz, LP,
551 S.W.3d 111, 115 (Tex. 2018); Sidley Austin Brown & Wood, LLP v. J.A. Green
Dev. Corp., 327 S.W.3d 859, 863 (Tex. App.—Dallas 2010, no pet.). We construe
the record in the light favorable to the trial court’s ruling. J.M. Davidson, Inc. v.
Webster, 128 S.W.3d 223, 233 (Tex. 2003). When a party does not request findings
of fact and conclusions of law and the court files none, it is implied the trial court
made all necessary findings to support its ruling. See Holt Atherton Indus., Inc. v.
Heine, 835 S.W.2d 80, 83 (Tex. 1992). Because the trial court did not issue findings
of fact or conclusions of law to explain its denial of the motion to compel arbitration,
we must uphold the trial court’s decision on any appropriate legal theory urged
below. Louisiana-Pacific Corp. v. Newport Classic Homes, L.P., No. 05-21-00330-
CV, 2023 WL 3000579, at *3 (Tex. App.—Dallas Apr. 19, 2023, no pet.) (mem.
op.).
The parties agree that the Federal Arbitration Act applies to their dispute. See
9 U.S.C. §§ 1–16. A party seeking to compel arbitration must first establish that
there is a valid arbitration agreement. In re AdvancePCS Health, L.P., 172 S.W.3d
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603, 605 (Tex. 2005) (per curiam) (orig. proceeding). The strong presumption
favoring arbitration arises only after the party seeking to compel arbitration proves
that a valid arbitration agreement exists. J.M. Davidson, Inc, 128 S.W.3d at 227.
The party alleging an arbitration agreement must present summary proof that the
dispute is subject to arbitration, and the party resisting arbitration may contest the
opponent’s proof or present evidence supporting a defense to enforcement. See In
re Weekley Homes, L.P., 180 S.W.3d 127, 130–31 (Tex. 2005) (original proceeding).
Direct-Benefits Estoppel
In its first issue, StrucSure argues the trial court erred by denying its motion
to compel arbitration because 2RH’s breach of contract and fraud claims are subject
to a valid and enforceable arbitration provision in the Limited Warranty. It maintains
that because 2RH sought and obtained benefits under the Limited Warranty, 2RH is
bound by the arbitration clause despite being a non-signatory to the Limited
Warranty. 2RH contends it is not seeking any benefits under the Limited Warranty
so the doctrine of direct-benefits estoppel does not apply, and it cannot be compelled
to arbitration.
Here, StrucSure offered proof of an arbitration provision in the Limited
Warranty. It is undisputed 2RH did not sign the Limited Warranty; however, non-
signatories may be bound to an arbitration clause in accordance with general rules
of state contract law, agency law, or equity. Louisiana-Pacific Corp., 2023 WL
3000579, at *3. The equitable doctrine of direct-benefits estoppel applies to parties
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who seek to derive a direct benefit from a contract with an arbitration agreement.
Id. If the non-signatory’s claims (and thus the defendant’s liability) arise solely from
the contract or must be determined by reference to it, or if the non-signatory
deliberately seeks and obtains direct and substantial benefits from the contract
containing the arbitration clause, irrespective of whether the non-signatory’s claims
are based on the contract, then direct-benefits estoppel may apply. Id. Estoppel
“prevents a party from insisting upon his strict legal rights when it would be unjust
to allow him to enforce them.” In re Weekley Homes, L.P., 180 S.W.3d at 133
(internal quotation omitted).
In Jody James Farms, JV v. Altman Group, Inc., 547 S.W.3d 624 (Tex. 2018),
the supreme court explained:
Simply put, a person cannot have his contract and defeat it too. When
a claim depends on the contract’s existence and cannot stand
independently—that is, the alleged liability arises solely from the
contract or must be determined by reference to it—equity prevents a
person from avoiding the arbitration clause that was part of that
agreement. But when the substance of the claim arises from general
obligations imposed by state law, including statutes, torts and other
common law duties, or federal law, direct-benefits estoppel is not
implicated even if the claim refers to or relates to the contract or would
not have arisen “but for” the contract’s existence.
Id. at 637 (internal citations, quotations, and footnotes omitted); Louisiana-Pacific
Corp., 2023 WL 3000579, at *5. In order to be compelled to arbitrate under an
agreement to which it was not a party, the non-signatory must be “seeking the
benefits” of the contract by seeking to enforce its terms. In re Merrill Lynch, Pierce,
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Fenner & Smith, Inc., 195 S.W.3d 807, 816 (Tex. App.—Dallas 2006, orig.
proceeding).
Although StrucSure argues it sought to compel arbitration because 2RH
sought to enforce the Limited Warranty, we disagree. Whether a claim seeks the
direct benefit from a contract containing an arbitration clause turns on the substance
of the claim, not artful pleading. G.T. Leach Builders, LLC v. Sapphire V.P., LP,
458 S.W.3d 502, 527 (Tex. 2015). The claim must depend on the existence of the
contract and be unable to stand independently without the contract. Id. at 528.
Here, 2RH’s third-party petition indicates that its breach of contract claim
against StrucSure is based on StrucSure’s alleged breach to provide the Limited
Warranty, not a breach of any terms of the Limited Warranty itself. 2RH alleged
“[t]he Agreement constitutes a valid and enforceable written contract between 2RH
and StrucSure for StrucSure to provide the Warranty for the Property.” The third-
party petition separately defined the “Warranty” and the “Agreement.” Although
2RH stated “StrucSure failed to honor the Warranty,” it emphasized that “conduct
constitutes a breach of their contractual obligations under the Agreement to provide
the Warranty for the Property,” not that StrucSure failed to honor the terms of the
Limited Warranty. Further, although 2RH’s pleading did not specifically state it
sought recovery of the $3,412.50 purchase price of the Limited Warranty, 2RH
explained that the purchase price was the only damages it sought to recover. It
stated, “We have not pleaded and we have not sought the damages for the alleged
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issues with the house. . . . We have not sought from StrucSure the totality of the
damages that plaintiffs are seeking in this case.”
2RH has not “artfully” pled around the Limited Warranty in an attempt to
avoid its arbitration clause. It is not suing StrucSure for breach of its obligations
under the Limited Warranty, and therefore, is not seeking the benefits of the Limited
Warranty. See Carr v. Main Carr Dev., LLC, 337 S.W.3d 489, 497 (Tex. App.—
Dallas 2011, pet. denied) (explaining a nonsignatory plaintiff seeking the benefits of
a contract is estopped from simultaneously attempting to avoid its burdens); see also
Louisiana-Pacific Corp., 2023 WL 3000579, at *5. 2RH’s breach of contract claim
does not stand on the Limited Warranty’s existence, but rather can stand
independently. And although 2RH’s breach of contract claim may “relate to” the
Limited Warranty, it “arises out of and directly seeks the benefits of a separate
alleged agreement” between the parties. See, e.g., Sapphire, 458 S.W.3d at 529.
As explained at the hearing, 2RH was not arguing StrucSure breached the Limited
Warranty, but rather that “[StrucSure] never even provided what we purchased via
the warranty.” Under these circumstances, direct-benefits estoppel did not compel
arbitration of 2RH’s breach of contract claim as a non-signatory to the Limited
Warranty; therefore, the trial court did not err by denying StrucSure’s motion to
compel arbitration of this claim.
We next consider 2RH’s fraud by nondisclosure claim. In its third-party
petition, 2RH asserted the Sessas’ claims related to StrucSure’s refusal to honor its
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obligations under the Limited Warranty because the Limited Warranty did not cover
the home. 2RH argued if that was true, then StrucSure falsely represented to 2RH
the coverage of the Limited Warranty and concealed from or failed to disclose
certain facts regarding the Limited Warranty.
StrucSure argues the “allegation of nondisclosure or fraudulent non-
disclosure is based upon referencing the exclusions and limitations in the Limited
Warranty. Without asserting these references there is no claim for nondisclosure or
fraudulent non-disclosure.” Again, StrucSure misses the mark. 2RH’s fraud claim
is not based on any of the exclusions or limitations that might apply to the Limited
Warranty. Instead, the issue is whether the Limited Warranty exists and to what
extent 2RH may be entitled to damages for paying for a Limited Warranty that did
not cover what 2RH allegedly bargained for on the Sessas’ behalf.
The trial court explained it at the hearing as follows:
[I]n your estimation, [it] is not consistent with the direct-benefits
analysis that is no - - 2RH is not seeking a direct benefit in that instance
from the contract, but rather seeking damages based on that there was
no contract should the jury find that there was fraud in the
representation that there would be a warranty and there in fact wasn’t a
warranty, the very definition of that is that you’re not relying on the
existence of the warranty but rather the opposite[.]
Like the trial court, we are not convinced 2RH “would have no claims had the
agreement containing the arbitration provision not been signed.” See Carr, 337
S.W.3d at 499. Fraud by non-disclosure, a subcategory of fraud, occurs when a party
has a duty to disclose certain information and fails to disclose it. Bombardier
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Aerospace Corp. v. SPEP Aircraft Holdings, LLC, 572 S.W.3d 213, 219 (Tex. 2019).
2RH’s fraud claim relies on StrucSure’s alleged independent duty to disclose
whether the Limited Warranty would or would not cover the home in light of the
change in builder, which 2RH disclosed prior to StrucSure issuing the Limited
Warranty. Thus, StrucSure’s potential liability does not depend on the Limited
Warranty’s existence, as 2RH is not seeking to enforce any of its terms, but instead
stands independently from it. See, e.g, Jody James, 547 S.W.3d at 637; see also
Carr, 337 S.W.3d at 498. And while we acknowledge 2RH’s claim may “relate” to
the Limited Warranty, a non-signatory cannot be compelled to arbitrate when claims
merely “touch matters” covered by a contract. Carr, 337 S.W.3d at 498.
Accordingly, the trial court did not err by denying StrucSure’s motion to compel
arbitration of 2RH’s fraud claim. We overrule StrucSure’s first issue.
Agency
In its second issue, StrucSure argues the trial court erred by denying its motion
to compel arbitration because 2RH acted as Homestead’s agent in procuring the
Limited Warranty and Homestead is a defined party to the Limited Warranty. 2RH
responds StrucSure provided no evidence supporting its agency theory. We agree.
Texas has recognized agency as one theory, among others not relevant here,
in which arbitration by non-signatories may be required. Jody James, 547 S.W.3d
at 633; McGaffey v. Carolina Props., LLC, No. 05-21-00985-CV, 2022 WL
16959265, at *1 (Tex. App.—Dallas Nov. 16, 2022, no pet.) (mem. op.). Because
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an agency relationship cannot be presumed, the party who alleges agency has the
burden of proving it with evidence. Coleman v. Klockner & Co. AG, 180 S.W.3d
577, 588 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
An agent is a person authorized to transact business for a principal and is
subject to the principal’s control. Reliant Energy Servs., Inc. v. Cotton Valley
Compression, L.L.C., 336 S.W.3d 764, 782–83 (Tex. App.—Houston [1st Dist.]
2011, no pet.). Authorization to act and control of the action are the two essential
elements of agency. Id. Authority to act may be actual or apparent. Gaines v. Kelly,
235 S.W.3d 179, 182 (Tex. 2007). Apparent agency, also called apparent authority,
is based on the concept of estoppel and imposes liability when the principal’s
conduct should equitably prevent a person from denying the existence of an agency
relationship. Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 & n.2
(Tex. 1998). In determining whether an agent has apparent authority, “only the
conduct of the principal is relevant,” and we examine the reasonableness of the third
party’s assumption about authority. Sunergon Oil, Gas & Mining Grp., Inc. v. Cuen,
No. 01-19-00998-CV, 2021 WL 3775589, at *5 (Tex. App.—Houston [1st Dist.]
Aug. 26, 2021, no pet.) (mem. op.).
The question of whether an agency relationship exists is usually a fact issue.
Jarvis v. K&E Re One, LLC, 390 S.W.3d 631, 639 (Tex. App.—Dallas 2012, no
pet.). Because StrucSure did not request findings of fact and conclusions of law and
the trial court did not issue any, we presume the trial court made all the necessary
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findings to support its ruling and we construe the record in the light most favorable
to the trial court’s ruling. J.M. Davidson, Inc., 128 S.W.3d at 233; Holt Atherton
Indus., Inc., 835 S.W.2d at 83.
StrucSure argued that 2RH “transacted and managed” the issuance of the
Limited Warranty on Homestead’s behalf and, therefore, 2RH should be required to
arbitrate because 2RH hired Homestead to complete construction of the home and
was “instrumental” in obtaining the Limited Warranty. StrucSure relied on the
following evidence to support its agency theory: (1) the Construction Completion
Agreement between 2RH and Homestead, (2) the Warranty Deed, (3) the Limited
Warranty application, and (4) an email from Chris Anaya, 2RH’s counsel. We
consider each document in turn.
Johnson, on behalf of Homestead, signed the Construction Completion
Agreement in his capacity as “contractor” and Ruiz signed on behalf of 2RH as
“owner.” Nothing within the document indicates either party signed as principal and
agent of the other. Ruiz signed the Warranty Deed in his capacity as 2RH’s president
and owner, not as an agent of Homestead. Further, the Warranty Deed does not
reference StrucSure, Homestead, or the Limited Warranty, but instead is simply the
document transferring the home from 2RH, as owner, to the Sessas, as purchaser.
The Limited Warranty application is signed by the Sessas as the home’s purchaser,
and although Homestead is listed as the “member name” under “Builder & Warranty
Information,” the application is not signed by Homestead. To the extent StrucSure
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argues an agency relationship was created because Homestead is listed on the
application and identified as the “builder,” we reject its argument. 2RH procured
the Limited Warranty on behalf of the Sessas, not Homestead. This conclusion is
further supported by the email from Anaya to a StrucSure representative in which
he stated, “2RH was the developer of the property and purchased the Home Warranty
for the benefit of the Owners.” Nothing in the email indicates 2RH acted on behalf
of Homestead.
Construing the record in the light most favorable to the trial court’s ruling and
deferring to its implied finding of facts, the record contains no evidence of either
actual or apparent authority creating an agency relationship between 2RH and
Homestead. There is no evidence establishing a direct principal-agent relationship
between 2RH and Homestead or that 2RH had any apparent authority to act on behalf
of Homestead or that Homestead controlled any of 2RH’s actions. Accordingly, the
trial court did not err by denying StrucSure’s motion to compel arbitration based on
agency.
Even if we agreed with StrucSure’s agency argument, which we do not, our
analysis would not change. Whether it is 2RH or Homestead asserting a claim for
failure to provide a home warranty, this dispute does not fall within the scope of the
limited warranty’s arbitration provision. StrucSure’s second issue is overruled.
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Conclusion
We affirm the trial court’s order denying StrucSure’s motion to compel
arbitration.
/Erin A Nowell/
ERIN A. NOWELL
JUSTICE
221214F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
STRUCSURE HOME On Appeal from the 116th Judicial
WARRANTY, LLC, Appellant District Court, Dallas County, Texas
Trial Court Cause No. DC-21-13529.
No. 05-22-01214-CV V. Opinion delivered by Justice Nowell.
Justices Goldstein and Breedlove
2RH BROTHERS PROPERTIES, participating.
LLC, Appellee
In accordance with this Court’s opinion of this date, the trial court’s order
denying appellant STRUCSURE HOME WARRANTY, LLC’s motion to compel
arbitration is AFFIRMED.
It is ORDERED that appellee 2RH BROTHERS PROPERTIES, LLC,
recover its costs of this appeal from appellant STRUCSURE HOME WARRANTY,
LLC.
Judgment entered July 17, 2023.
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