in Re: Obra Homes, Inc.

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

NUMBER 13-03-00644-CV

OBRA HOMES, INC., ALEX FLORES, AND
DAVID CANTU, Appellants,

v.

RICARDO GONZALEZ AND SANDRA
BARBOUR, ON BEHALF OF THEMSELVES
AND OTHERS SIMILARLY SITUATED, Appellees.

On Appeal from the 138th District Court
of Cameron County, Texas.

NUMBER 13-03-00700-CV

IN RE OBRA HOMES, INC.

On Petition for Writ of Mandamus

MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Chief Justice Valdez

By an accelerated interlocutory appeal and an accompanying petition for writ of

mandamus, appellants/relators, Obra Homes, Inc., Alex Flores, and David Cantu

(collectively “Obra Homes”), complain about the trial court’s denial of a motion to compel

arbitration and the certification of the underlying lawsuit as a class action in favor of

appellees/real parties in interest, Ricardo Gonzalez and Sandra Barbour, on behalf of

themselves and those similarly situated (collectively “the Gonzalez class”). By two issues

in their interlocutory appeal in appellate cause number 13-03-644-CV, Obra Homes

contends that the trial court clearly abused its discretion in denying Obra Homes’s motion

to compel arbitration and by certifying this matter as a class action. In addition, by its

petition for writ of mandamus in appellate cause number 13-03-700-CV, Obra Homes

makes substantially similar arguments as contained in their interlocutory appeal.

In appellate cause number 13-03-700-CV, we conditionally grant the writ requested.

In appellate cause number 13-03-644-CV, we reverse the trial court’s class certification

order, and we remand for proceedings consistent with this opinion.

I. BACKGROUND

This dispute pertains to the purchase of a home in Cameron County, Texas. On

June 14, 2001, Gonzalez and Barbour contracted to purchase a home from Obra Homes

for the purchase price of $73,686. Gonzalez, Barbour, and an Obra Homes representative

each signed the underlying contract for the home purchase.

Subsequently, on May 29, 2003, the Gonzalez class filed an original class action

petition against Obra Homes, alleging that the underlying contract was defective because

Obra Homes neglected to include a disclosure statement that was required by section

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27.007 of the Texas Property Code and, therefore, engaged in an unconscionable act and

breached a fiduciary duty of good faith and fair dealing owed to the class. See TEX . PROP.

CODE ANN . § 27.007 (Vernon Supp. 2009).1 The Gonzalez class further alleged that Obra

Homes’ failure to include the disclosure statement in the underlying contract entitled the

class members to a “civil, statutory penalty of $500,” court costs, and reasonable attorney’s

fees. On June 4, 2003, the Gonzalez class filed a first amended class action petition

alleging the same causes of action against Obra Homes but adding language stating that:

(1) the members of the class numbered in the thousands and would be impracticable to

1
The version of section 27.007 of the property code in effect at the tim e of this dispute provided, in
relevant part, the following:

(a) A written contract subject to this chapter m ust contain next to the
signature lines in the contract a notice printed or typed in 10-point boldface
type or the com puter equivalent that reads substantially sim ilar to the
following:

“This contract is subject to Chapter 27 of the Texas
Property Code. The provisions of that chapter m ay affect your right
to recover dam ages arising from the perform ance of this contract.
If you have a com plaint concerning a construction defect arising
from the perform ance of this contract and that defect has not been
corrected through norm al warranty service, you m ust provide the
notice regarding the defect to the contractor by certified m ail, return
receipt requested, not later than the 60th day before the date you
file suit to recover dam ages in a court of law. The notice m ust refer
to Chapter 27, Property Code, and m ust describe the construction
defect. If requested by the contractor, you m ust provide the
contractor an opportunity to inspect and cure the defect as provided
by Section 27.004, Property Code.”

(b) If a contract does not contain the notice required by this section,
the claim ant m ay recover from the contractor a civil penalty of $500 in
addition to any other rem edy provided by this chapter.

Act of May 24, 1999, 76th Leg., R.S., ch. 189, § 8, 1999 Tex. Gen. Laws 663, 666-67, amended by
Act of June 20, 2003, 78th Leg., R.S., ch. 458, § 2.06, 2003 Tex. Gen. Laws 1703, 1727-28, amended by Act
of June 15, 2007, 80th Leg., R.S., ch.750, § 2, 2007 Tex. Gen. Laws 1555, 1556, amended by Act of June
15, 2007, 80th Leg., R.S., ch. 843, § 4, 2007 Tex. Gen. Laws 1754, 1755-56 (current version at T EX . P R O P .
C OD E A N N . § 27.007 (Vernon Supp. 2009)).

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individually join as parties to the action2; (2) the questions of law and fact are common and

of general interest to the class; (3) Gonzalez and Barbour’s claims are typical of the class’s

claims; (4) Gonzalez and Barbour will fairly and adequately protect the interests of the

class as representatives; and (5) class-action treatment of this dispute is necessary to

avoid the “risk of inconsistent or varying adjudications with respect to individual class

members which would establish incompatible standards of conduct for the Defendant

[Obra Homes]” and to allow “other members not parties to the adjudications to protect their

interests.” See TEX . R. CIV. P. 42.

Obra Homes filed its original answer on June 26, 2003, arguing that the underlying

contract compelled the Gonzalez class to submit their claims to arbitration. On July 28,

2003, Obra Homes filed motions to compel arbitration under the Federal Arbitration Act

(the “FAA”) and to abate the lawsuit pending arbitration. Attached to Obra Homes’ motions

was an affidavit executed by Larry Contreras, wherein he averred that: (1) at the time of

the underlying transaction, Alex Flores and David Cantu were both employees of Obra

Homes; and (2) many of the materials used in the construction of the class members’

homes were manufactured outside the State of Texas and, thus, Obra Homes “operates

in interstate commerce and [the] transactions with the plaintiffs involve interstate

commerce.”

Also on July 28, 2003, the Gonzalez class filed a motion to certify the class. On

September 8, 2003, the class filed a supplemental motion to certify, specifically addressing

2
At the Septem ber 22, 2003 hearing, counsel for the Gonzalez class stated that the class consisted
of 3,044 m em bers who executed contracts with O bra H om es between Septem ber 1, 2000, when the
Legislature first required the inclusion of the section 27.007 disclosure statem ent in residential hom e purchase
agreem ents, and June 13, 2003. Act of May 24, 1999, 76th Leg., R.S., ch. 189, § 8, 1999 Tex. Gen. Laws
663, 666-67 (am ended 2003 and 2007). Counsel further stated that 2,479 of the 3,044 class m em bers
bought hom es in either Cam eron or Hidalgo counties.

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the underlying causes of action and the numerosity, commonality, typicality, and adequacy

of representation of the class members’ claims. See id. at R. 42(a).

On September 22, 2003, the trial court conducted a hearing on Obra Homes’s

motion to compel arbitration and the Gonzalez class’s request for class certification. On

the day of the hearing, the class filed a fourth amended class action petition, revising their

causes of action against Obra Homes. In addition to their causes of action for breach of

fiduciary duty and for violations of section 27.007 of the property code, the class asserted

that Obra Homes had breached the underlying contract and was negligent in failing to

include the section 27.007 disclosure statement. The class further asserted that:

“Defendants [Obra Homes] included arbitration agreements that were ambiguous,

contracts of adhesion, unconscionable, resulted from uneven economic power, were

against public policy, and were procured by fraud in the inducement of the arbitration

agreements. Furthermore, there was no mutuality of consideration regarding such

arbitration agreements and burdensome costs.”

On October 2, 2003, the trial court entered an order denying Obra Homes’s motion

to compel arbitration. Specifically, the trial court noted the following in its order:

In reaching such finding[,] the Court finds that the penalty/fine provision of
the Residential Construction Liability Act /[]Texas Property Code (§[]27.007)
upon which the Plaintiffs [the Gonzalez class] bring suit is outside the scope
of the arbitration agreement. Moreover, the arbitration agreement included
in the Purchase Agreements with Plaintiffs is a contract of adhesion and
unconscionable. The Court further finds that the arbitration agreement is not
supported by mutual consideration and based on illusory promises of the
Defendant Obra Home[s], Inc. The Court further finds that the enforcement
of the arbitration agreement would be unduly costly and violate public policy
considerations.

The next day, the trial court entered an order granting the Gonzalez class’s request for

class certification and making numerous findings pertaining to the certification of the class.

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 On October 17, 2003, Obra Homes filed their notice of accelerated appeal of the

trial court’s October 2 and 3, 2003 orders in appellate cause number 13-03-644-CV.

Shortly thereafter, Obra Homes filed a petition for writ of mandamus in appellate cause

number 13-03-700-CV, also challenging the trial court’s October 2 and 3, 2003 orders.

However, while this dispute was pending in this Court, Obra Homes notified us of

the bankruptcy filing of a named party—Alex Flores. As a result, the causes were abated.

See 11 U.S.C. § 362 (setting out various acts subject to the automatic stay associated with

a bankruptcy filing); see also TEX . R. APP. P. 8. The parties filed a joint motion to reinstate

this dispute on March 30, 2010, asserting that the automatic stay in Flores’s bankruptcy

proceeding had been lifted and including a certified copy of the order discharging Flores’s

debts. See TEX . R. APP. P. 8.3(a). On April 16, 2010, this Court granted the parties’ joint

motion to reinstate.

II. PRELIMINARY MATTERS

In the instant case, Obra Homes challenges the trial court’s: (1) refusal to compel

the parties to arbitration under the FAA; and (2) certification of the Gonzalez class.

Generally, “[a] party may not appeal an interlocutory order unless authorized by statute.”

Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001) (citing Cherokee

Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex. 1985) (per curiam)). Section 51.014(a)(3)

of the civil practice and remedies code provides that a party may appeal from an

interlocutory order certifying or refusing to certify a class in a suit brought under rule 42 of

the rules of civil procedure. TEX . CIV. PRAC . & REM . CODE ANN . § 51.014(a)(3) (Vernon

2008); see TEX . R. CIV. P. 42. Because section 51.014(a)(3) provides Obra Homes with

an adequate remedy on appeal regarding the trial court’s interlocutory order certifying the

Gonzalez class, we will not analyze their issues pertaining to the class certification within

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the context of their petition for writ of mandamus. See TEX . CIV. PRAC . & REM . CODE ANN .

§ 51.014(a)(3); see also In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.

2004) (stating that mandamus will issue to correct a clear abuse of discretion for which the

remedy by appeal is inadequate); Bally Total Fitness Corp., 53 S.W.3d at 352.

However, section 51.014 of the civil practice and remedies code does not provide

for the appeal of an interlocutory order refusing to compel parties to arbitration under the

FAA. See TEX . CIV. PRAC . & REM . CODE ANN . § 51.014. Traditionally, Texas courts have

handled such complaints via mandamus. See In re Halliburton Co., 80 S.W.3d 566, 573

(Tex. 2002) (orig. proceeding); Hawthorne Townhomes, L.P. v. Branch (In re Hawthorne

Townhomes, L.P.), 282 S.W.3d 131, 137 (Tex. App.–Dallas 2009, no pet.) (“The denial of

arbitration under the Federal Arbitration Act cannot be appealed.”) (citing Jack B. Anglin

Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992)); Nabors Drilling USA, LP v. Carpenter, 198

S.W.3d 240, 246 (Tex. App.–San Antonio 2006, orig. proceeding); see also In re HEB

Grocery Co., L.P., 299 S.W.3d 393, 397 (Tex. App.–Corpus Christi 2009, orig. proceeding)

(“When a trial court erroneously denies a motion to arbitrate under the FAA, mandamus

is the appropriate remedy.”). Therefore, we will analyze the trial court’s order denying Obra

Homes’s motion to compel arbitration within the context of its petition for writ of mandamus,

and we will analyze Obra Homes’ issues pertaining to the certification of the Gonzalez

class in its interlocutory appeal.

III. APPELLATE CAUSE NUMBER 13-03-700-CV

By their petition for writ of mandamus, Obra Homes argues that the trial court clearly

abused its discretion in denying its motion to compel arbitration because the underlying

arbitration agreement is valid and the Gonzalez class’s claims are within the scope of the

arbitration agreement. In addition, Obra Homes asserts that the class’s various defenses

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to the arbitration agreement are not supported by competent evidence or legal authority.

The class responds by arguing that: (1) the FAA does not apply to the arbitration

agreement; and (2) the trial court did not abuse its discretion in finding that the underlying

contract was unconscionable, not supported by consideration, and in violation of public

policy.

A. The FAA

The FAA applies to transactions that involve commerce. See 9 U.S.C. § 2.

“Commerce” has been broadly defined and encompasses contracts relating to interstate

commerce. See In re Gardner Zemke Co., 978 S.W.2d 624, 626 (Tex. App.–El Paso

1998, orig. proceeding). The FAA does not require a substantial effect on interstate

commerce; rather, it requires commerce to be involved or affected. See L & L Kempwood

Assocs., L.P. v. Omega Builders, Inc. (In re L & L Kempwood Assocs., L.P.), 9 S.W.3d

125, 127 (Tex. 1999) (orig. proceeding); In re Merrill Lynch Trust Co., FSB, 123 S.W.3d

549, 553 (Tex. App.–San Antonio 2003, orig. proceeding).

The FAA may govern a written arbitration clause enforced in Texas state court if the

parties have expressly contracted for the FAA’s application. In re AdvancePCS Health,

L.P., 172 S.W.3d 603, 605-06 & n.3 (Tex. 2005) (orig. proceeding) (per curiam). When

parties have designated the FAA to govern their arbitration agreement, their designation

should be upheld. See id. at 606 & n.3; In re Brock Specialty Servs., Ltd., 286 S.W.3d

649, 653 (Tex. App.–Corpus Christi 2009, orig. proceeding); see also In re Int’l Bank of

Commerce, No. 13-07-00693-CV, 2008 Tex. App. LEXIS 519, at **16-17 (Tex.

App.–Corpus Christi Jan. 18, 2008, orig. proceeding [mand. denied]) (mem. op.).

B. Mandamus Relief

As noted earlier, to be entitled to mandamus relief, a petitioner must show that the

8
trial court clearly abused its discretion and that the relator has no adequate remedy by

appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d at 135-36; see In re McAllen Med.

Ctr., Inc., 275 S.W.3d 458, 462 (Tex. 2008) (orig. proceeding). Under this standard, we

defer to the trial court’s factual determinations if they are supported by evidence, but we

review the trial court’s legal determinations de novo. Brainard v. State, 12 S.W.3d 6, 30

(Tex. 1999); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (stating that the

reviewing court may not substitute its judgment for that of the fact finder with respect to the

resolution of factual issues or matters within the fact finder’s discretion). A trial court

abuses its discretion when it acts in an unreasonable or arbitrary manner, when it acts

without reference to guiding rules and principles, or when it clearly fails to analyze or apply

the law correctly. See Walker, 827 S.W.2d at 840; Beaumont Bank, N.A. v. Buller, 806

S.W.2d 223, 226 (Tex. 1991).

C. The Validity and Scope of an Arbitration Agreement

A party seeking to compel arbitration by writ of mandamus must: (1) establish the

existence of a valid agreement to arbitrate under the FAA, and (2) show that the claims in

dispute are within the scope of the agreement. In re Kellogg Brown & Root, Inc., 166

S.W.3d 732, 737 (Tex. 2005) (orig. proceeding). “Whether a valid arbitration agreement

exists is a legal question subject to de novo review.” In re D. Wilson Constr. Co., 196

S.W.3d 774, 781 (Tex. 2006) (orig. proceeding). We generally apply state-law principles

governing the formation of contracts when determining the validity of agreements to

arbitrate which are subject to the FAA. See In re Palm Harbor Homes, Inc., 195 S.W.3d

672, 676 (Tex. 2006) (orig. proceeding) (citing First Options of Chicago, Inc. v. Kaplan, 514

U.S. 938, 944 (1995)). If the trial court finds that there is a valid agreement to arbitrate,

then the burden shifts to the party opposing arbitration to prove his defenses. J.M.

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Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003).

Once a valid agreement to arbitrate has been established, the court must then

determine whether the arbitration agreement covers the nonmovants’ claims. In re

FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex. 2001) (orig. proceeding). To determine

whether an existing arbitration agreement covers a party’s claims, the court must “focus

on the complaint’s factual allegations rather than the legal causes of action asserted.” Id.

at 754. Federal policy embodied in the FAA favors agreements to arbitrate, and courts

must resolve any doubts regarding an arbitration agreement’s scope in favor of arbitration.

Id. at 753. If the arbitration agreement encompasses the claims and the party opposing

arbitration has failed to prove its defenses, the trial court has no discretion but to compel

arbitration and stay its own proceedings. Id. at 753-54; see D.R. Horton, Inc. v. Brooks,

207 S.W.3d 862, 866-67 (Tex. App.–Houston [14th Dist.] 2006, no pet.); Feldman/Matz

Interests, L.L.P. v. Settlement Capital Corp., 140 S.W.3d 879, 883 (Tex. App.–Houston

[14th Dist.] 2004, no pet.).

In the instant case, the underlying contract contained the following provision with

respect to arbitration:

This agreement is subject to arbitration under the Federal Arbitration
Act. Subject to the provisions set forth below, all claims, demands, disputes,
controversies[,] and differences that may arise between the parties to this
Agreement (including the officers, agents[,] and employees of each party) of
whatever nature or kind, including, without limitation, disputes: (1) as to
events, representations, or omissions, which predate this agreement[;] (2)
arising out of this agreement; (3) relative to the construction contemplated,
by this agreement; and/[o]r (4) as to repairs or warranty claims arising after
the construction is completed, shall be submitted to binding arbitration and
such arbitration shall be governed by the provisions of the Federal Arbitration
Act, 9 U.S.C. Section 1[,] et seq. Either party may, within one year after an
arbitration award, apply to the U.S. District Court for the Western District of
Texas to confirm the award. The forwarding of a written demand for
arbitration shall toll the running of any applicable statute of limitations for the
matter to be arbitrated. As between the Purchaser [the Gonzalez class] and

10
 the Seller [Obra Homes], this clause shall control over any dispute resolution
provision to the contrary in the Limited Warranty Program. This agreement
to arbitrate shall survive closing, and shall survive cancellation of this
purchase agreement. Arbitration shall be conducted through [the] American
Arbitration Association.

To the side of this provision, both parties initialed the provision underneath language

stating “Binding Arbitration.”3 The contract also contained the following provision, entitled

“Seller’s Option to Cancel,” which was also initialed by both parties:

Notwithstanding the foregoing, if for any reason, a bone fide dispute
should arise between Purchaser and Seller prior to closing, and if such bona
fide dispute cannot be resolved to their mutual satisfaction, Seller[,] at its
sole option[,] may either submit the dispute to binding arbitration or may
terminate this agreement by written notice to the Purchaser prior to closing.
If Seller terminates the purchase agreement, Seller shall return to Purchaser
the Earnest Money paid to Seller to bind the contract, and any cash deposits
paid by Purchaser for any option, selection or change order, whether
refundable or not.

The trial court, in reviewing the provisions of the contract, concluded that the

arbitration provisions did not pertain to the claims alleged in the underlying lawsuit and,

thus, denied Obra Homes’s motion to compel arbitration. Specifically, the trial court noted

that:

THE COURT: —you’re asking me, I guess what you’re telling me that
there’s a legal requirement or statute that says this has
to take place [inclusion of the notice provision in the
sales contract], and then you’re trying to impede that to
the buyers saying, “Well, you all are subject to that,

3
The record contains affidavits executed by Gonzalez and Barbour both averring that:

Attached is a copy of the Purchase Agreem ent that I signed with Obra
Hom es, Inc. At no tim e did anyone at Obra Hom es, Inc. explain the
arbitration agreem ent to m e or the ram ifications of such agreem ent. They
sim ply told m e to sign and initial.

....

I was unaware at the tim e I signed the Purchase Agreem ent that the
Defendant Obra Hom es, Inc. failed to include a disclosure statem ent setting
forth m y rights. At no tim e did anyone at O bra H om es, Inc. advise m e of
any of such rights.

11
 also, even though it does not involve the buyers.” If
they really wanted to say, “Well, give me my $500
because you didn’t do this.” I don’t see where you
could say it was the contract between the buyers and
Obra.

....

THE COURT: You’re talking about any claims, but I think [sic]. I’ve
seen so many contractors with home repairs, or
builders—but this is kind of unique, I never heard that
argument, that it [the arbitration provision] goes beyond
the contract itself.

....

THE COURT: —I didn’t mean to interrupt, but it kind of dawned on me
pretty early, or quickly, it seems like arbitration is not
appropriate in this case, and it shouldn’t be appropriate
under the circumstances.

I mean, if it’s something dealing with a breach of
contract, or just dealing with the contract of individuals,
then, of course, arbitration is appropriate. And I know
that our courts, our state favors arbitration over
everything else. But[,] under the circumstances, I have
been told or advised that arbitration is not appropriate,
and I am not going to require that they [the Gonzalez
class] go to arbitration. So your request is denied.

“‘A party cannot be required to arbitrate unless it has agreed to do so.’” Trico Mar.

Servs., Inc. v. Stewart & Stevenson Tech. Servs., Inc., 73 S.W.3d 545, 548 (Tex.

App.–Houston [1st Dist.] 2002, no pet.) (quoting Hou-Scape, Inc. v. Lloyd, 945 S.W.2d

202, 205 (Tex. App.–Houston [1st Dist.] 1997, orig. proceeding)). “The parties’ agreement

to arbitrate must be clear. In this determination, Texas contract law applies.” Id. (citations

omitted). “Construction of an unambiguous contract is a question of law.” Id. (citing MCI

Telecomms. Corp. v. Tex. Util. Elec. Co., 995 S.W.2d 647, 650 (Tex. 1999)). “This Court

may not expand upon the terms of the contract or tolerate a liberal interpretation of it by

reading into a voluntary, consensual agreement to arbitrate when one otherwise does not

12
exist.” Bates v. MTH Homes-Tex., L.P., 177 S.W.3d 419, 422 (Tex. App.–Houston [1st

Dist.] 2005, no pet.) (citing In re ACG Cotton Mktg., L.L.C., 985 S.W.2d 632, 633 (Tex.

App.–Amarillo 1999, orig. proceeding); Escajeda v. Cigna Ins. Co., 934 S.W.2d 402, 407

(Tex. App.–Amarillo 1996, no writ) (“Before a contract can be read as delegating to third-

parties that power [as sole arbiters of reasonableness and necessity of all future medical

expenses], the word evincing the delegation must be express, plain, clear, and certain.”);

Seale v. Roy M. Mitchell Contracting Co., 321 S.W.2d 149, 151 (Tex. Civ. App.–Austin

1959, writ ref’d) (finding “no clear incorporation of the arbitration provisions of the principal

contract into the subcontract between” the parties)).

“Although an arbitration agreement does not have to assume any particular form,

the language of the agreement must clearly indicate the intent to arbitrate.” Id. (citing

Massey v. Galvan, 822 S.W.2d 309, 316 (Tex. App.–Houston [14th Dist.] 1992, writ

denied)). “Without an agreement to arbitrate, arbitration cannot be compelled.” Id. (citing

Freis v. Canales, 877 S.W.2d 283, 284 (Tex. 1994) (orig. proceeding)).

In reviewing the plain language of the underlying contract and considering that the

parties signed the underlying contract, it is clear to this Court that the parties intended for

any claims or disputes amongst the parties to be submitted to binding arbitration; thus, we

conclude that a valid agreement to arbitrate exists. See In re Kellogg Brown & Root, Inc.,

166 S.W.3d at 737; see also Bates, 177 S.W.3d at 422; Trico Mar. Servs., Inc., 73 S.W.3d

at 548. However, the crux of this issue is the scope of the terms “all claims, demands,

disputes, controversies[,] and differences,” as contained in the arbitration clause of the

contract. See In re Kellogg Brown & Root, Inc., 166 S.W.3d at 737. Obra Homes argues

that these terms encompass the Gonzalez class’s claims pertaining to Obra Homes’

apparent failure to include the statutorily required section 27.007 disclosure in its sales

13
contracts. On the other hand, the class asserts that the above-mentioned terms do not

encompass the underlying claims; therefore, arbitration cannot be compelled.

The supreme court, in analyzing the scope of arbitration clauses, has held that:

whether claims seek a direct benefit from a contract turns on the substance
of the claim, not artful pleading. We said that a claim is brought in contract
if liability arises from the contract, while a claim is brought in tort if liability is
derived from other general obligations imposed by law.

In re Int’l Profit Assocs., 274 S.W.3d 672, 677 (Tex. 2009) (per curiam) (citing In re

Weekley Homes, L.P., 180 S.W.3d 127, 131-32 (Tex. 2005)); see In re FirstMerit Bank,

N.A., 52 S.W.3d at 755 (“[A] litigant who sues based on a contract subjects him or herself

to the contract’s terms.”).

Here, the factual allegations made by the Gonzalez class are substantially related

to the underlying contracts. See Tex. Petrochemicals LP v. ISP Water Mgmt. Servs. LLC,

301 S.W.3d 879, 885 (Tex. App.–Beaumont 2009, no pet.) (“Generally, if the facts alleged

in a claim ‘touch matters that are covered by, have a significant relationship to, are

inextricably enmeshed with, or are factually intertwined with the contract that contains the

arbitration agreement, the claims are arbitrable.’”) (quoting In re Bath Junkie Franchise,

Inc., 246 S.W.3d 356, 366 (Tex. App.–Beaumont 2008, orig. proceeding) and citing In re

FirstMerit Bank, N.A., 52 S.W.3d at 754; In re Nestle USA-Bev. Div., Inc., 82 S.W.3d 767,

776 (Tex. App.–Corpus Christi 2002, orig. proceeding); Hou-Scape, Inc., 945 S.W.2d at

205-06). In fact, the substance of the class’s causes of action is that Obra Homes

neglected to include the disclosure paragraph in its sales contracts, as mandated by

section 27.007 of the property code. See TEX . PROP. CODE ANN . § 27.007. Moreover,

counsel for the class admitted at the September 22, 2003 hearing that the composition of

the class was determined by the number of individuals that had entered into contracts with

14
Obra Homes during the time period in which the section 27.007 disclosure statement was

not provided. Thus, the class’s claims arose from the contract and must be arbitrated.

See In re Weekley Homes, L.P., 180 S.W.3d at 132; see also Tex. Petrochemicals LP, 301

S.W.3d at 885-86.

Furthermore, the language contained in the arbitration provisions is very broad,

encompassing “all claims, demands, disputes, controversies[,] and differences that may

arise between the parties to this Agreement (including the officers, agents[,] and

employees of each party) of whatever nature or kind” and surviving closing. See In re First

Tex. Homes, Inc., 120 S.W.3d 868, 870 (Tex. 2003) (orig. proceeding) (per curiam)

(holding that the FAA applies when the parties’ contract included an arbitration provision

that applied to “all disputes between [them] . . . arising out of this Agreement or other

action performed . . . by [First Texas]”); see also Emerald Tex. Inc. v. Peel, 920 S.W.2d

398, 403 (Tex. App.–Houston [1st Dist.] 1996, no writ) (“If . . . the [arbitration] clause is

broad, arbitration should not be denied unless it can be said with positive assurance that

the particular dispute is not covered.”). As mentioned earlier, we are to resolve any doubts

about whether claims are arbitrable under the FAA in favor of arbitration. See In re

FirstMerit Bank, N.A., 52 S.W.3d at 753; see also In re First Tex. Homes, Inc., 120 S.W.3d

at 870. Therefore, based on the foregoing, we conclude that the Gonzalez class’s claims

are within the scope of the arbitration agreement. Given that, we must now analyze the

various defenses to arbitration raised in the trial court by the class. See J.M. Davidson,

Inc., 128 S.W.3d at 227.

D. The Gonzalez Class’s Defenses to the Arbitration Agreement

As stated earlier, the trial court, in its October 2, 2003 order, concluded that the

arbitration agreement is: (1) a contract of adhesion and unconscionable; (2) not supported

15
by mutual consideration; (3) illusory; (4) unduly costly; and (5) in violation of public policy

considerations.

1. Contract of Adhesion & Unconscionability

In the trial court, the Gonzalez class argued that the arbitration provisions are

procedurally and substantively unconscionable because the contracts were unfair and

contracts of adhesion; that is, they were required to execute the contracts in order to

purchase homes from Obra Homes. See In re Palm Harbor Homes, Inc., 195 S.W.3d at

678; see also In re H.E. Butt Grocery Co., 17 S.W.3d 360, 370-71 (Tex. App.–Houston

[14th Dist.] 2000, orig. proceeding) (defining a contract of adhesion as a contract in which

one party has absolutely no bargaining power or ability to change the contract terms).

Adhesion contracts are not necessarily unconscionable, and there is nothing per se

unconscionable about arbitration provisions. In re AdvancePCS Health, L.P., 172 S.W.3d

at 608; see In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 574 (Tex. 1999) (orig.

proceeding). One party’s refusal to contract with another absent an arbitration provision

does not establish procedural unconscionability. In re U.S. Home Corp., 236 S.W.3d 761,

764 (Tex. 2007) (orig. proceeding) (per curiam); see In re Halliburton Co., 80 S.W.3d at

572 (holding that an arbitration provision was not procedurally unconscionable because an

employer made a “take it or leave it” offer to an at-will employee and stating that a party

seeking to avoid an arbitration clause must prove more than the contract was offered on

a take it or leave it basis). Under the FAA, unequal bargaining power does not establish

grounds for defeating an agreement to arbitrate absent a well-supported claim that the

clause resulted from the sort of fraud or overwhelming economic power that would provide

grounds for the revocation of any contract. In re AdvancePCS Health, L.P., 172 S.W.3d

at 608.

16
 On the other hand, the test for substantive unconscionability is whether, given the

parties’ general commercial background and the commercial needs of the particular trade

or case, the arbitration clause is so one-sided that it is unconscionable under the

circumstances existing when the parties made the contract. See In re Palm Harbor

Homes, Inc., 195 S.W.3d at 678; see also In re FirstMerit Bank, N.A., 52 S.W.3d at 757

(stating that unconscionability principles are applied to prevent unfair surprise or

oppression).

In arguing that the arbitration agreement was procedurally unconscionable, the

Gonzalez class stated that the negotiation process was oppressive and unfair because

Obra Homes included its binding arbitration clause in the contract while failing to include

the statutorily mandated section 27.007 disclosure statement which addresses how

homeowners must notify a home builder of construction defects. See TEX . PROP. CODE

ANN . § 27.007. The class also argues that Obra Homes’ failure to include the section

27.007 disclosure statement caused the class “to unknowingly waive certain statutory

rights, remedies[,] and obligations by entering [into] the Agreement[,] which contained a

binding arbitration clause.”

The class, however, does not adequately explain which statutory rights, remedies,

and obligations would be waived by the enforcement of the arbitration clause. As it

currently reads, the contract merely requires the class to enforce their rights in arbitration;

it does not strip the class of its right to enforce the provisions of chapter 27 of the property

code. See generally High Valley Homes, Inc. v. Fudge, No. 03-01-00726-CV, 2003 Tex.

App. LEXIS 3273, at *7 (Tex. App.–Austin Apr. 17, 2003, no pet.) (mem. op.) (“[W]e reject

the proposition that the RCLA [Residential Construction Liability Act as defined in chapter

27 of the property code] displaces otherwise binding agreements entered into by the

17
parties. Had the legislature intended the mediation provided for in the RCLA to preempt

private contracts and other statutory ADR [alternative dispute resolution] schemes, it could

have plainly said so. We hold that the RCLA does not preclude parties to a residential

construction contract from agreeing to another form of alternative dispute resolution . . . .”

(footnotes omitted)). Based on the foregoing, we cannot say that the arbitration provisions

are procedurally unconscionable.

With respect to substantive unconscionability, the Gonzalez class contends that the

arbitration clause is unfair and would require them to violate the law—the Residential

Construction Liability Act—as it pertains to the resolution of construction defects. However,

in making this argument, the class does not direct us to any provisions of the Residential

Construct Liability Act or explain how these provisions would be violated if the arbitration

clause were enforced. See id. Moreover, to the extent that the class argues that there was

unequal bargaining power and that Obra Homes failed to explain the arbitration clause to

its customers, we are to presume that parties who have read and signed an arbitration

agreement know its contents. See Cantella & Co., Inc. v. Goodwin, 924 S.W.2d 943, 944

(Tex. 1996); Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex. 1962). Unequal bargaining

power, by itself, does not establish grounds for defeating an agreement to arbitrate under

the FAA. See EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90-91 (Tex. 1996) (orig.

proceeding) (per curiam) (citing Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33

(1991)). We cannot say that the arbitration provisions are substantively unconscionable;

therefore, we conclude that the Gonzalez class has failed to prove its contract-of-adhesion

and unconscionability defenses.4

4
In Emerald Texas, Inc. v. Peel, the Houston First Court of Appeals, in analyzing argum ents sim ilar
to those m ade in the instant case, stated:

18
 2. The Class’s Illusory and Mutual Consideration Defenses

An arbitration agreement may be illusory if a party can unilaterally avoid the

agreement to arbitrate. See In re Palm Harbor Homes, Inc., 195 S.W.3d at 677; see also

In re HEB Grocery Co., L.P., 299 S.W.3d 393, 399 (Tex. App.–Corpus Christi 2009, orig.

proceeding) (citing Light v. Centel Cellular Co., 883 S.W.2d 642, 645 (Tex. 1994); Avila v.

Gonzalez, 974 S.W.2d 237, 244 (Tex. App.–San Antonio 1998, pet. denied)); D.R. Horton,

Inc. v. Brooks (In re D.R. Horton), 207 S.W.3d 862, 867 (Tex. App.–Houston [14th Dist.]

2006, no pet.) (“An illusory promise is one that fails to bind the promisor because he

retains the option of discontinuing performance without notice.”) (emphasis added).

The supreme court has held that “[i]n the context of stand-alone arbitration

agreements, binding promises are required on both sides as they are the only

consideration rendered to create a contract.” In re AdvancePCS Health, L.P., 172 S.W.3d

at 607. However, “when an arbitration clause is part of an underlying contract, the rest of

the parties’ agreement provides the consideration.” Id. (citing In re FirstMerit Bank, N.A.,

52 S.W.3d at 757). In In re AdvancePCS Health, L.P., the supreme court analyzed an

arbitration clause similar to the one in this case and stated the following:

Moreover, the arbitration clause here is not illusory even if considered alone.
The pharmacies’ point to the following provisions as rendering the contract
illusory:

The circum stances of this sale are routine. To declare them
unconscionable would be to outlaw arbitration per se in the large m ajority of
residential real estate sales contracts. Holding this provision
unconscionable based on this evidence would negate the public policy in
favor of arbitration. W e hold there is no evidence to support . . .
unconscionability.

920 S.W .2d 398, 402-03 (Tex. App.–Houston [1st Dist.] 1996, no writ). The Peel case involved, am ong other
things, allegations of negligence, breach of warranty, violations of the Texas Deceptive Trade Practices Act,
and the unconscionability of an arbitration clause contained in the earnest m oney contract covering the
construction of a new hom e. Id. at 400-01.

19
 1.3 Amendments. From time to time AdvancePCS may amend this
Agreement . . . by giving notice to Provider of the terms of the amendment
and specifying the date the amendment becomes effective, which shall not
be less than thirty (30) days after the notice.

8.3 Immediate Termination Rights. If . . . Provider fails to perform or
breaches any terms or provisions of the AdvancePCS Documents,
AdvancePCS may terminate this Agreement effective upon notice to
Provider. This termination right is in addition to any and all other rights and
remedies that may be available to AdvancePCS under this Agreement or at
law or equity.

8.5 Provider Event of Default and AdvancePCS Remedy and Other
AdvancePCS Rights. . . . Nothing in this Agreement shall limit, and the
parties agree that in addition to the rights specified in this Section, Advance
PCS shall retain, any and all rights AdvancePCS may have at law, equity or
under this Agreement.

Id. (emphasis added).

In support of its argument that the arbitration provisions were not supported by

mutual consideration, the Gonzalez class cites to the El Paso Court of Appeals’ decision

in In re Jobe Concrete Products, Inc., No. 08-02-00175-CV, 2003 Tex. App. LEXIS 6582,

at **6-7 (Tex. App.–El Paso July 31, 2003, orig. proceeding) (mem. op.). In that case, the

El Paso Court of Appeals concluded that there was no valid agreement to arbitrate

workers’ compensation claims because the arbitration agreement was not supported by

consideration and stated that:

Mutual promises to give up the right to litigate can constitute consideration
supporting an agreement to arbitration. In re Jebbia, 26 S.W.3d 753, 758
(Tex. App.–Houston [14th Dist.] 2000, orig. proceeding).

....

The Relator expressly agreed that, in exchange for the employee’s
acquiescence to arbitrate, it would submit all claims covered by the policy to
arbitration. However, the Relator retained the right to amend, modify, or
terminate the plan at any time. The employee does not have any right to
amend or modify or alter the plan. Furthermore, the employee is not in any
position to challenge the employer’s decision. The Plan provides that the
“Administrator has discretionary and final authority to interpret and implement

20
 the provisions of the Plan, including, but not limited to, correcting any defect,
reconciling any inconsistency and supplying any omission, and making any
and all determinations that may impact a claim.” As with the right to
termination, the employee has no right to challenge the decisions of the
Employer. Unlike in cases such as Jebbia, where the court found that the
language of the parties created a mutual promise to forego the right to a jury
trial which could not be unilaterally rescinded by either party; in the instant
case[,] the language of the agreement created mutual promises by both to
forego their right to a jury trial which could be terminated or altered by the
Employer with or without the consent of the employee. . . . For this reason,
we hold that the arbitration agreement in this case is not supported by
consideration and, therefore, is not a valid agreement.

Id. at **9-10.

We disagree with the Gonzalez class’s assertion that the arbitration clause is not

supported by mutual consideration. First, we note that the arbitration agreement is not a

separate contract but, rather, a part of the broader sales contract. See id.; see also In re

FirstMerit Bank, N.A., 52 S.W.3d at 757. Second, we cannot say that Obra Homes did not

provide any consideration for the contract and, specifically, the arbitration provisions. In

fact, the Gonzalez class members each received houses, as well as other rights

appertaining to the houses, as consideration for the contract. See Peel, 920 S.W.2d at

402 (holding that “[t]here is no requirement that a separate identifiable consideration be

segregated and attributable to the arbitration provision; it was part of the entire bundle of

rights the Peels acquired, along with the house”)5; see In re FirstMerit Bank, N.A., 52

S.W.3d at 757-58 (“[A]n arbitration clause does not require mutuality of obligation, so long

as the underlying contract is supported by adequate consideration.”); see also Labidi v.

Sydow, 287 S.W.3d 922, 926 (Tex. App.–Houston [14th Dist.] 2009, orig. proceeding).

While we recognize that the contract, if viewed in isolation, appears to be illusory

5
Obra Hom es argues that even if this Court were to find that the arbitration provisions allow for it to
unilaterally cancel the contract, the right is very narrow and inapplicable in this case because the transaction
closed and both parties are now bound to arbitration.

21
in that Obra Homes retained the right to arbitrate or terminate the contract if disputes with

customers could not be resolved to everyone’s satisfaction. However, we note that the

contract requires Obra Homes to provide written notice of its intent to customers, and it

must refund all earnest money and cash deposits before exercising this right. This means

that Obra Homes had to provide customers with some consideration—written notice and

a refund of all money paid—in exchange for this right. See Brooks, 207 S.W.3d at 867.

Given this, and the fact that the entire contract is supported by consideration, we do not

believe that the contract is illusory. See id. Therefore, based on the foregoing, we

conclude that Gonzalez has failed to prove that the arbitration agreement is not supported

by consideration and is illusory.

3. Arbitration Costs

The party resisting arbitration based on assertions of burdensome arbitration costs

must establish the likelihood that arbitration would be prohibitively expensive. See Green

Tree Fin. Corp. v. Randolph, 531 U.S. 79, 81 (2000); see also In re MHI P’ship, Ltd., No.

14-07-00851-CV, 2008 Tex. App. LEXIS 4053, at *17 (Tex. App.–Houston [14th Dist.] May

29, 2008, orig. proceeding) (mem. op.).

Without more, the possibility that a party may have to share in the payment
of the arbitrators’ fees is insufficient to invalidate an arbitration agreement.
When a party fails to specify excessive arbitration costs, and relies instead
on speculation that the party will be burdened with prohibitive costs, a court
is not allowed to invalidate the arbitration agreement.

In re MHI P’ship, Ltd., 2008 Tex. App. LEXIS 4053, at **17-18 (citing Am. Life Ins. Co. v.

Orr, 294 F.3d 702, 712 (5th Cir. 2002)). Furthermore, the United States and Texas

Supreme Courts have held that a schedule of the American Arbitration Association’s usual

fees is not enough to establish that arbitration fees are unduly burdensome and costly.

See Green Tree, 531 U.S. at 90 n.6; see also In re FirstMerit Bank, N.A., 52 S.W.3d at

22
757.

In support of its argument that arbitration costs are unduly burdensome and, thus,

the arbitration clause should not be enforced, the Gonzalez class provided the trial court

with a listing of rules and procedures from the American Arbitration Association’s website,

which includes a listing of the estimated costs of arbitration. The class asserts that the

charges to arbitrate this case “would be, at a minimum $700,” which the class argues is

unfair given that the statutory civil penalty involved in this case only allows for the recovery

of $500 per claimant. See TEX . PROP. CODE ANN . § 27.007(b). However, in their pleadings,

the class uses this argument to support their contention that the class should be certified,

rather than to invalidate the arbitration agreement. Furthermore, the class did not argue

that the costs of arbitration were unduly burdensome to the trial court at the September 22,

2003 hearing. Because the class only included a schedule of the American Arbitration

Association’s usual fees for arbitration, we conclude that the class has not adequately

demonstrated that the costs of arbitration are unduly burdensome so as to invalidate the

arbitration agreement. See Green Tree, 531 U.S. at 90 n.6; see also In re U.S. Home

Corp., 236 S.W.3d at 764; In re FirstMerit Bank, N.A., 52 S.W.3d at 757.

4. Public Policy Considerations

In addition, the Gonzalez class argues that the arbitration clause violates public

policy in that: “(1) class members will be discouraged from pursuing their legal remedies

because of the expense involved in arbitration and the amounts involved in each separate

case; [and] (2) most class members would likely remain unaware of their entitlement to

$500 excluding attorneys’ fees.” We have already held that the class has failed to

establish that the costs of arbitration are unduly burdensome. Therefore, we find the

class’s first public policy argument unpersuasive. With respect to their second public policy

23
argument, the class does not cite any authority demonstrating that a class member’s lack

of awareness of a statutory remedy somehow invalidates an arbitration agreement.

Furthermore, the class ignores the fact that the federal policy embodied in the FAA favors

agreements to arbitrate. See In re FirstMerit Bank, N.A., 52 S.W.3d at 753; see also Tipps,

842 S.W.2d at 268 (“Arbitration has been sanctioned in Texas since at least the time of our

first state constitution. The public policy of both our state and federal governments favors

agreements to resolve legal disputes through such voluntary settlement procedures.”)

(citations omitted). We conclude that this defense is meritless.

Because we have held that: (1) the arbitration provisions are valid; (2) the claims

brought by the Gonzalez class were within the scope of the arbitration agreement; and (3)

the class failed to satisfy their burden of proving their affirmative defenses, we conclude

that the trial court abused its discretion in failing to compel arbitration. “A party denied the

right to arbitrate under the FAA is entitled to mandamus relief.” In re AdvancePCS Health,

L.P., 172 S.W.3d at 608 (citing In re Wood, 140 S.W.3d 367, 370 (Tex. 2004) (per

curiam)).

IV. APPELLATE CAUSE NUMBER 13-03-644-CV

By their interlocutory appeal, Obra Homes contends that the trial court abused its

discretion in certifying the Gonzalez class. The Gonzalez class argues that there is

sufficient evidence in the record to satisfy the class certification requirements codified in

rule 42 of the rules of civil procedure. See generally TEX . R. CIV. P. 42.

A. Standard of Review and Applicable Law

Although we review a trial court’s decision to certify a class for abuse of discretion,

we do not indulge every presumption in favor of the trial court’s decision. Stonebridge Life

Ins. Co. v. Pitts, 236 S.W.3d 201, 205-06 (Tex. 2007); see Harry Schein, Inc. v. Stromboe,

24
102 S.W.3d 675, 691 (Tex. 2002). Rather, “actual conformance with rule 42 is

indispensable.” Stonebridge Life Ins. Co., 236 S.W.3d at 206; see TEX . R. CIV. P. 42.

Compliance may not be presumed—it must be apparent from the record and the trial

court’s order. Tex. S. Rentals, Inc. v. Gomez, 267 S.W.3d 228, 232 (Tex. App.–Corpus

Christi 2008, no pet.). A trial court abuses its discretion when ruling on class certification

if it does not properly apply the law to the undisputed facts, acts arbitrarily or unreasonably,

or rules upon factual assertions not supported by the record. Methodist Hosp. of Dallas

v. Tall, 972 S.W.2d 894, 898 (Tex. App.–Corpus Christi 1998, no pet.).

To comply with rule 42 of the rules of civil procedure, the party seeking class

certification must meet four initial prerequisites: (1) numerosity—“the class is so numerous

that joinder of all members is impracticable”; (2) commonality—“there are questions of law

or fact common to the class”; (3) typicality—“the claims or defenses of the representative

parties are typical of the claims or defenses of the class”; and (4) adequate

representation—“the representative parties will fairly and adequately protect the interests

of the class.” TEX . R. CIV. P. 42(a). The numerosity requirement, in particular, “is not

based on numbers alone.” Tall, 972 S.W.2d at 898. Instead, we look to whether joinder

of all class members is practicable in light of the size of the class and factors such as

judicial economy, the nature of the action, geographical location of class members, and the

likelihood that class members would be able to prosecute individual lawsuits. Id.

The plaintiff bears the burden to establish the right to proceed as a class. Id. at 897.

We acknowledge that the party seeking class certification need not “prove a prima facie

case or make an extensive evidentiary showing to meet the requirements” of rule 42. See

Lebron v. Citicorp Vendor Fin., Inc., 99 S.W.3d 676, 679 (Tex. App.–Eastland 2003, no

pet.). The party may “rely on pleadings and other materials that would not be admissible

25
at trial.” Id. However, the supreme court nonetheless requires the trial court to go beyond

the mere pleadings to “make a meaningful determination of the certification issues.” Sw.

Ref. Co., Inc. v. Bernal, 22 S.W.3d 425, 435 (Tex. 2000) (citing Castano v. Am. Tobacco

Co., 84 F.3d 734, 744 (5th Cir. 1996)).

B. The Green Tree Financial Corp. v. Bazzle Decision

Obra Homes contends that the United States Supreme Court’s decision in Green

Tree Financial Corp. v. Bazzle dictates reversal of the trial court’s order certifying the

Gonzalez class. See 539 U.S. 444, 451 (2003). In Bazzle, the parties agreed to submit

to an arbitrator “all disputes, claims, or controversies arising from or relating to this contract

or the relationships which result from this contract.” Id. In analyzing this language, the

United States Supreme Court, while recognizing a few “gateway matters” that are left to

the courts, not arbitrators, to decide, concluded that the broad arbitration agreement

provided that an arbitrator should decide the issue of class certification.6 Id. at 451-52.

The Bazzle court further acknowledged that the relevant question was what kind of

arbitration proceeding the parties agreed to, which is also the relevant question in the

instant case. See id. at 452.

C. Discussion

As previously noted, the relevant provisions of the contract provide that: “all claims,

demands, disputes, controversies[,] and differences that may arise between the parties to

this Agreement (including the officers, agents[,] and employees of each party) of whatever

nature or kind” must be arbitrated under the FAA. The arbitration clause in the present

6
The Bazzle court recognized the following as “gateway m atters” which necessitate court intervention:
“whether the parties have a valid arbitration agreem ent at all or whether a concededly binding arbitration
clause applies to a certain type of controversy.” Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452 (2003).
These “gateway m atters” correspond with our analysis of the validity and scope of the arbitration agreem ent.
See id.; see also In re Kellogg Brown & Root, Inc., 166 S.W .3d 732, 737 (Tex. 2005) (orig. proceeding).

26
case is strikingly similar to the one analyzed by the Bazzle court. See id. at 451.

Therefore, in light of the Bazzle decision, and because we have already concluded that the

arbitration agreement at issue in this case is valid and encompasses all claims, demands,

and disputes, we hold that the trial court abused its discretion in certifying the Gonzalez

class. See id. at 451-52; Autonation USA Corp. v. Leroy (In re AutoNation USA), 105

S.W.3d 190, 202 (Tex. App.–Houston [14th Dist.] 2003, orig. proceeding) (concluding that,

because the claims of the putative class members were subject to arbitration, the trial court

erred in certifying the class); see also Stonebridge Life Ins. Co., 236 S.W.3d at 205-06;

Harry Schein, Inc., 102 S.W.3d at 691 (Tex. 2002); Tall, 972 S.W.2d at 898. Pursuant to

the arbitration agreement, the certification of the Gonzalez class is within the discretion of

the arbitrator, not the court. See Bazzle, 539 U.S. at 451-52. Accordingly, we sustain Obra

Homes’ issue regarding the trial court’s class certification order.

V. CONCLUSION

In sum, we conditionally grant the petition for writ of mandamus in appellate cause

number 13-03-700-CV and direct the trial court to grant Obra Homes’ motion to compel

arbitration and order the parties to arbitration. This writ will issue only if the trial court fails

to act in accordance with this opinion. With respect to appellate cause number 13-03-644-

CV, we reverse the trial court’s class certification order, and we remand for proceedings

consistent with this opinion.

_______________________
ROGELIO VALDEZ,
Chief Justice

Delivered and filed the
3rd day of June, 2010.

27