5th and West Owner, L.P., and Joshua Needham v. Daryn Wasek and Donald Wasek

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-20-00458-CV

5th and West Owner, L.P.; and Joshua Needham, Appellants

v.

Daryn Wasek and Donald Wasek, Appellees

FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-20-000762, THE HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

MEMORANDUM OPINION

5th and West Owner, L.P., and Joshua Needham appeal from an interlocutory

order denying their motion to compel arbitration of the claims brought against them by

Daryn and Donald Wasek. See Tex. Civ. Prac. & Rem. Code § 171.098(a)(1) (allowing

interlocutory appeal from order denying motion to compel arbitration). We will reverse

and remand.

BACKGROUND

5th and West is the developer of a residential condominium building in downtown

Austin. In December of 2017, the Waseks signed a contract to purchase a unit in the building,

which was then in the early stages of development. The contract required the parties to resolve

“claims relating to the design or construction of the units, common elements or any improvement

located within the regime established by the [condominium] declaration” in “accordance with the
dispute resolution procedures set forth in the declaration.” Article 19 of that declaration requires

parties to arbitrate certain types of claims, including “claims relating to the design or

construction of the units, common elements or any improvement located within the

[condominium] regime.” It also lays out certain preconditions to initiating arbitration, including

mediation. The Waseks acknowledged in the contract that they had received a copy of the

declaration two months earlier.

In December of 2018 (while construction was still ongoing), 5th and West

adopted an amended declaration that rewrote and expanded article 19. The amended article 19

retained the original definition of “claim” but substantially expanded the preconditions to

initiating an arbitration.

The Waseks closed on the condominium in April of 2019, when the building was

complete. They had purchased the unit in “white box” condition, meaning they were responsible

for designing and constructing the interior. Shortly after beginning work, the Waseks discovered

leaks in the unit’s curtain wall. 1 The general contractor determined the leaks were the result of

defects in the construction of the wall and repaired the leaks.

The Waseks sued 5th and West for fraud and negligent misrepresentation for

failing to disclose the leaks prior to closing. 5th and West filed a motion to abate and to compel

arbitration. See id. § 171.021(a) (providing that courts “shall order the parties to arbitrate” upon

application showing “an agreement to arbitrate”). Specifically, 5th and West asked the court to

abate the case and order the parties to “comply with the dispute resolution processes and

requirements” required by the contract and declaration and to refer all claims to binding

1 According to the parties, the curtain wall is the exterior wall of the building.
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arbitration. 5th and West attached to its motion copies of the contract and the amended version

of article 19.

The Waseks amended their petition to add Needham—who acted on behalf of 5th

and West during the transaction—as a defendant. They also alleged that the adoption of the

amended condominium declaration was a “separate and additional fraud” because it was “an

attempt to thwart or effectively prevent the Waseks and other owners from pursuing claims such

as those the Waseks pursue here.” The Waseks also added claims for declaratory relief that

(1) the amended version of article 19 does not apply to the Waseks’ claims, and (2) appellants

should be estopped from arguing they were not responsible for “investigating, repairing and

testing the leaks in the Waseks’ curtain wall.”

Appellants jointly filed an amended motion to compel arbitration, appending to

the amended motion the pre-amendment version of article 19, among other documents. The

Waseks responded that their claims are outside the scope of the agreement and, alternatively, that

the contractual preconditions to arbitration have not been satisfied. They also asserted that both

versions of article 19 are procedurally and substantively unconscionable and illusory. Following

an evidentiary hearing, the district court signed an order denying appellants’ motion without

stating its reasons. This interlocutory appeal followed.

APPLICABLE LAW AND STANDARD OF REVIEW

As a threshold matter, we first address the parties’ dispute over the governing law.

Appellants argue that the Federal Arbitration Act (FAA), see 9 U.S.C. §§ 1–307, and the Texas

Arbitration Act, see Tex. Civ. Prac. & Rem. Code § 171.001–.098, both apply to this dispute.

The Waseks respond that the FAA does not apply because the contract does not involve

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interstate commerce. See Fredericksburg Care Co. v. Perez, 461 S.W.3d 513, 517 (Tex. 2015)

(“The FAA applies to arbitration clauses in contracts that affect interstate commerce.”). We

need not resolve this question because no party argues that the FAA preempts the TAA on any

issue in this case. See G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 519 n.14

(Tex. 2015) (explaining that “[t]he TAA is preempted only when it or other state law would not

allow enforcement of an arbitration agreement that the FAA would enforce” and that party

seeking to avoid application of TAA has burden of raising that issue (citing Ellis v. Schlimmer,

337 S.W.3d 860, 862 (Tex. 2011))). We therefore presume the TAA applies, but we find

guidance in court decisions addressing both acts. See id.; Forest Oil Corp. v. McAllen,

268 S.W.3d 51, 56 (Tex. 2008) (“Whether a case is governed by the Federal Arbitration Act

(FAA) or the TAA, many of the underlying substantive principles are the same[.]”).

A party seeking to compel arbitration must prove the existence of a valid

agreement to arbitrate and that the disputed claims are within the scope of that agreement. G.T.

Leach Builders, 458 S.W.3d at 519. We resolve these questions by applying “common

principles of general contract law to determine the parties’ intent.” Id. at 520 n.15; see also

Wagner v. Apache Corp., 627 S.W.3d 277, 283 (Tex. 2021) (“Arbitration agreements are on

equal footing with other contracts and must be enforced according to their terms.”). If a party

proves that the disputed claims are within the scope of a valid agreement to arbitrate, the burden

shifts to the opposing party to set up an affirmative defense to arbitration. Bonsmara Nat. Beef

Co. v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d 385, 397–98 (Tex. 2020).

We review the denial of a motion to compel arbitration for an abuse of discretion,

deferring to the trial court’s factual findings but reviewing legal questions de novo. Henry

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v. Cash Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018). The validity and scope of an arbitration

agreement are legal questions that we review de novo. Wagner, 627 S.W.3d at 283.

DISCUSSION

The parties join issue over whether the Waseks’ claims fall within the scope of the

arbitration agreement and whether the Waseks failed to establish a defense to arbitration.

The parties do not dispute that the purchase contract requires arbitration of certain

claims, so “a ‘strong presumption favoring arbitration arises’ and we resolve doubts as to the

agreement’s scope in favor of arbitration.” Rachal v. Reitz, 403 S.W.3d 840, 850 (Tex. 2013)

(quoting Ellis, 337 S.W.3d at 862). When determining whether claims fall within the scope of an

arbitration agreement, we look to the factual allegations rather than the legal claims. Id. (citing

In re FirstMerit Bank, N.A., 52 S.W.3d 749, 754 (Tex. 2001) (orig. proceeding)). The

“allegations need only be factually intertwined with arbitrable claims or otherwise touch upon

the subject matter of the agreement containing the arbitration provision.” Dargahi v. Handa,

No. 03-17-00386-CV, 2017 WL 5247517, at *2 (Tex. App.—Austin Nov. 8, 2017, no pet.)

(mem. op.); see Southwinds Express Constr., LLC v. D.H. Griffin of Tex., Inc., 513 S.W.3d 66,

74 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

The contract requires arbitration of “claims relating to the design or construction

of the units, common elements or any improvement located within the regime established by the

[condominium] declaration.” The Waseks argue that their claims do not relate to the leaks but to

appellants’ alleged nondisclosure and the adoption of the amended declaration. Courts have held

that agreements requiring arbitration of claims “relating to” a subject are “extremely broad” and

“capable of expansive reach.” See Kirby Highland Lakes Surgery Ctr., L.L.P. v. Kirby,

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183 S.W.3d 891, 898 (Tex. App.—Austin 2006, no pet.). For example, in Kirby, we interpreted

a clause requiring parties to arbitrate all disputes “relating to” an agreement as covering “all

disputes between the parties having a significant relationship to the contract regardless of the

label attached to the dispute.” Id.; see Toll Dall. TX, LLC v. Dusing, No. 03-18-00099-CV,

2019 WL 2127885, at *6–7 (Tex. App.—Austin May 16, 2019, no pet.) (mem. op.) (holding that

agreement requiring arbitration of all claims “related to” design or construction of home

“extend[ed] to all disputes that ‘touch’ matters” covered by agreement). Given the breadth of the

arbitration clause and the significant factual relationship between the Waseks’ claims and the

leaks, we conclude that their claims fall within the scope of the arbitration clause.

Nevertheless, the Waseks insist that the district court did not abuse its discretion

because article 19’s prerequisites to arbitration have not been satisfied and Texas courts

“consistently have upheld denial of arbitration when the [contractual] prerequisites for arbitration

have not been satisfied.” Specifically, they contend that it is undisputed that at least one

precondition—that a claimant initiate mediation—has not been satisfied. Appellants respond

that whether the parties must mediate is a matter for the arbitrator.

We agree with appellants. Courts generally presume that the parties “intend

arbitrators, not courts, to decide disputes about the meaning and application of particular

procedural preconditions for the use of arbitration.” G.T. Leach Builders, 458 S.W.3d at 521

(citing BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 34–35 (2014)). These procedural

matters include “the satisfaction of prerequisites such as time limits, notice, laches, estoppel, and

other conditions precedent to an obligation to arbitrate.” 2 Id. “If, however, there is clearly

2 The Waseks argue that it “do[es] not make sense” to require them to complete certain
of article 19’s dispute-resolution procedures, such as a third-party inspection report of the wall
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established proof that a strictly procedural requirement has not been met and that procedural

requirement precludes arbitration, a court can deny a motion to compel arbitration on this

ground.” Rodriguez v. Texas Leaguer Brewing Co., 586 S.W.3d 423, 430 (Tex. App.—Houston

[14th Dist.] 2019, pet. denied) (citing Amir v. International Bank of Com., 419 S.W.3d 687, 692

(Tex. App.—Houston [1st Dist.] 2013, no pet.)). This exception is “rare” and applies only when

“‘no rational mind’ could question . . . that the parties intended for a procedural provision to

preclude arbitration[.]” Bonsmara Nat. Beef Co., 603 S.W.3d at 399 (citing General

Warehousemen & Helpers Union Loc. 767 v. Albertson’s Distrib., Inc., 331 F.3d 485, 488 (5th

Cir. 2003)).

Appellants argue that this case is indistinguishable from Pisces Foods, where we

upheld a ruling denying a motion to compel arbitration because the parties had not attempted to

mediate. See In re Pisces Foods, L.L.C., 228 S.W.3d 349, 353–54 (Tex. App.—Austin 2007,

orig. proceeding). This Court held that the trial court did not abuse its discretion by denying

Pisces’s motion to compel because the arbitration agreement “expressly require[d] mediation as a

precondition for requesting arbitration,” and there was no evidence that mediation had occurred.

Id. Article 19 also contemplates that mediation would occur before arbitration, but nothing

indicates the parties intended to dispense with arbitration if mediation does not occur first. To

the contrary, the contract expressly requires compliance with all the dispute resolution

procedures set out in article 19, including arbitration. See In re U.S. Home Corp., 236 S.W.3d 761,

764 (Tex. 2007) (orig. proceeding) (rejecting materially identical argument because “while the

where the leaks were discovered, when there is no dispute that the leaks existed or have been
repaired. We must reject this argument because nothing in the contract rebuts the presumption
that the parties intended the arbitrators to decide the meaning and applicability of these
procedures. See G.T. Leach Builders, LLC v. Sapphire V.P., 458 S.W.3d 502, 521 (Tex. 2015).
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parties’ agreements clearly contemplated mediation before arbitration, there is no indication they

intended to dispense with arbitration if mediation did not occur first”). 3 We conclude that the

district court erred by deciding that the parties’ failure to mediate precluded arbitration under

article 19. See id.; In re R&R Pers. Specialists of Tyler, Inc., 146 S.W.3d 699, 705 (Tex. App.—

Tyler 2004, orig. proceeding) (“Whether R & R has satisfied the prerequisites to arbitration and

the effect of any failure to do so are questions for the arbitrator to decide.”).

Defenses

We now turn to whether the Waseks carried their burden to establish a defense

to arbitration. The Waseks assert that article 19 is illusory and that the amended version

is unconscionable.

We first consider whether the arbitration agreement was illusory. Generally, a

contract “is illusory if it does not bind the promisor, such as when the promisor retains the option

to discontinue performance.” In re 24R, Inc., 324 S.W.3d 564, 567 (Tex. 2010) (orig.

proceeding) (per curiam) (citing Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,

289 S.W.3d 844, 849 (Tex. 2009)). In the arbitration context, an agreement “is illusory if it

binds one party to arbitrate, while allowing the other to choose whether to arbitrate.” Royston,

3 This case is distinguishable from Pisces Foods in another respect. The agreement at
issue there required both parties to attempt to mediate disputes before resorting to arbitration.
In re Pisces Foods, L.L.C., 228 S.W.3d 349, 353–54 (Tex. App.—Austin 2007, orig.
proceeding). On the other hand, article 19 provides that a “[c]laimant may not initiate any
proceeding before any administrative tribunal seeking redress of resolution of its Claim until
Claimant has complied with the procedures of this article.” Article 19 defines “claimant” as
“any party having a claim against another party.” Thus, 5th and West was not required to initiate
mediation when it had no claim against the Waseks. See In re Oakwood Mobile Homes, Inc.,
987 S.W.2d 571, 574 (Tex. 1999) (orig. proceeding) (“It was never Oakwood’s burden under the
Agreement to initiate the arbitration process against itself or assist the Brandons in doing so.”),
abrogated on other grounds by In re Halliburton Co., 80 S.W.3d 566 (Tex. 2002)
(orig. proceeding)
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Rayzor, Vickery, & Williams, LLP v. Lopez, 467 S.W.3d 494, 505 (Tex. 2015). Even a mutual

agreement to arbitrate “remains illusory if the contract permits one party to legitimately avoid

its promise to arbitrate, such as by unilaterally amending or terminating the arbitration provision

and completely escaping arbitration.” Id.; see In re Odyssey Healthcare, Inc., 310 S.W.3d 419,

424 (Tex. 2010) (orig. proceeding) (per curiam) (explaining that “an arbitration clause is not

illusory unless one party can avoid its promise to arbitrate by amending the provision or

terminating it altogether”). The Waseks argue that the contract is illusory because 5th and West

could escape its agreement to arbitrate by further amending or even repealing article 19.

However, the “mere fact that an arbitration clause is one-sided does not make it illusory.” See

Royston, 467 S.W.3d at 505. For example, the supreme court has determined that an arbitration

clause was not illusory even though it allowed one party to unilaterally modify the clause with

thirty days’ notice. In re AdvancePCS Health L.P., 172 S.W.3d 603, 607–08 (Tex. 2005) (orig.

proceeding). The supreme court held that the clause was not illusory because it required

AdvancePCS to arbitrate claims falling within the thirty-day window. Id.; see In re Halliburton

Co., 80 S.W.3d 566, 569–70 (Tex. 2002) (orig. proceeding) (upholding clause that allowed

Halliburton to unilaterally amend arbitration rules with ten days’ notice because amendments did

not apply to any claim filed within that period).

Similarly, appellants argue that the agreement is not illusory because a statute

prohibits applying the amendments to the Waseks’ claim:

An amendment to the declaration that modifies or removes the arbitration
requirement or the process associated with resolution of a claim may not apply
retroactively to a claim regarding the construction or design of units or common
elements based on an alleged act or omission that occurred before the date of the
amendment.

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Tex. Prop. Code § 82.120(b). Appellants concede that Section 82.120 applies and requires them

to arbitrate any claims arising before the amendments under the original version of article 19.

The Waseks respond that Section 82.120 does not apply because their claims are based in part on

facts which occurred after the adoption of the amendments. But the Waseks base their claims

on omissions that began prior to the adoption of the amended declaration—the failure

to disclosure the leaks—and continued afterwards, and on the adoption itself. Applying the plain

language of the statute, we conclude that it applies to the Waseks’ claims. See Davis v. Morath,

624 S.W.3d 215, 222 (Tex. 2021) (“We must apply statutes as written and refrain from rewriting

text that lawmakers chose.”). We conclude that the arbitration agreement is not illusory because

Section 82.120 prohibits appellants from escaping their obligation to arbitrate claims entirely.

See AdvancePCS, 172 S.W.3d at 607–08; Halliburton Co., 80 S.W.3d at 569–70. 4

Next, the Waseks argue that the amended article 19 is invalid because it is

substantively and procedurally unconscionable. See Royston, 467 S.W.3d at 499 (“Arbitration

agreements may be either substantively or procedurally unconscionable, or both.”). Appellants

have conceded that the amended declaration does not apply to the Waseks’ claims, and the

Waseks do not make the same claim regarding the original version of article 19. Because the

amendments are not applicable to the present dispute, it is unnecessary for us to decide whether

the amendments are unconscionable. See Tex. R. App. P. 47.1 (requiring courts of appeals to

4 Relying on In re Datamark, Inc., 296 S.W.3d 614 (Tex. App.—El Paso 2009, orig.
proceeding), the Waseks argue that “[n]otice of an amendment of an arbitration provision and an
opportunity to enforce the arbitration provision before the amendment goes into effect also are
required in order for the arbitration provision not to be illusory.” The arbitration provision at
issue there allowed Datamark to unilaterally modify the arbitration at any time without notice.
Id. at 617–18. This meant that Datamark could avoid arbitrating any dispute by amending the
arbitration provision before an employee requested arbitration. Id. at 618. Datamark does not
assist the Waseks because Section 82.120 of the Property Code prohibits 5th and West from
avoiding arbitration in the same manner.
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write opinion “that addresses every issue raised and necessary to final disposition of the

appeal”). Cf. In re Poly-Am., L.P., 262 S.W.3d 337, 359 (Tex. 2008) (orig. proceeding)

(declining to decide whether arbitration agreement that shortened statute of limitations was

unconscionable when claimant filed claim within that shortened period).

After reviewing the record, we conclude that appellants proved the existence of an

arbitration agreement, that the Waseks’ claims fall within its scope, and that the Waseks failed to

carry their burden to establish an affirmative defense. We sustain appellants’ issue on appeal.

CONCLUSION

We reverse the order denying appellants’ motion to compel arbitration and

remand for further proceedings consistent with this opinion. See Tex. Civ. Prac. & Rem. Code

§ 171.025; Tex. R. App. P. 43.2(d).

__________________________________________
Edward Smith, Justice

Before Chief Justice Byrne, Justices Baker and Smith

Reversed and Remanded

Filed: January 7, 2022

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