At page 764 Evaluating unconscionability and fraud in arbitration agreements53 citing cases“like any other contract clause, a party cannot avoid an arbitration clause by simply failing to read it.”
- Marquez v. US Foods Inc, No. 3:23-cv-02455 (N.D. Tex. July 31, 2024).(Like any other contract clause, a party cannot avoid an arbitration clause by simply failing to read it.)
- Darling Homes of Texas, LLC v. Wade H. Khoury, No. 01-20-00395-CV (Tex. App.—Houston [1st Dist.] May 13, 2021).published (Like any other contract clause, a party cannot avoid an arbitration clause by simply failing to read it.)
- San Jacinto River Auth. v. City of Conroe, Texas & City of Magnolia, Texas, 688 S.W.3d 124 (Tex. 2024).published(finding no indication in contract that parties who agreed to mediate prior to arbitration intended to dispense with arbitration if mediation did not occur first, although defendant could have sought to delay arbitration…)
- Lennar Homes of Texas Inc. Lennar Homes of Texas Land & Constr., Ltd. Lennar Homes of Texas Sales & Mktg., Ltd. v. Mohammad Rafiei, 687 S.W.3d 726 (Tex. 2024).publishedWithout evidence that Rafiei sought to estimate the actual costs associated with arbitrating the arbitrability question, it is speculative to conclude that the delegation provision is itself unconscionable. “[M]aking the required showing e…
- Swanson v. Sw. Airlines Co., Inc., No. 1:21-cv-05595, 2023 WL 5509357 (N.D. Ill. Aug. 26, 2023).(Adhesion contracts are not automatically unconscionable, and there is nothing per se unconscionable about arbitration agreements.” (Citation omitted))
- Houston an USA, LLC D/B/A Autonation USA Houston v. Walter Shattenkirk, 669 S.W.3d 392 (Tex. 2023).published Pertinent factors include whether “the total cost of arbitration is comparable to the total cost of litigation” and “the claimant’s overall ability to pay the arbitration fees and costs.” Id. at 894-95. 1 Further, making the required showi…
- in Re Whataburger Restaurants Llc, 645 S.W.3d 188 (Tex. 2022).publishedDavidson, Inc. v. Webster, 128 S.W.3d 223, 228 (Tex. 2003) (“At-will employment does not preclude formation of other contracts between employer and employee, so long as neither party relies on continued employment as consideration for the…
- 21st Mortg. Corp. & Oak Creek Homes, LP v. Joe & Brenda Moore, No. 11-17-00167-CV, 2019 WL 150953 (Tex. App.—Eastland Jan. 10, 2019).publishedThe complaining party must present “some evidence that [it] will likely incur arbitration costs in such an amount as to deter enforcement of statutory rights in the arbitral forum.” Id. (citing In re U.S. Home Corp., 236 S.W.3d 761, 764 (T…
- Southwinds Express Constr. v. D.H. Griffin of Texas, Inc., No. 14-15-00610-CV (Tex. App.—Houston [14th Dist.] Nov. 15, 2016).published(Boyce, majority). 31 See In re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex. 2007); Omoruyi, 2010 WL 1992585 , at *8; Valero Energy Corp., 2 S.W.3d at 584 . 12
- Southwinds Express Constr., LLC v. D.H. Griffin of Texas, Inc., 513 S.W.3d 66 (Tex. App.—Houston [14th Dist.] 2016).publishedSee ante at 77-78; In re Igloo Products Corp., 238 S.W.3d at 578-81 (concluding that the issue was a "gateway dispute” because the party agreed to arbitrate only “disputes that cannot first be resolved through [ ] internal dispute resoluti…
Show 36 more citing cases
- Cash Biz, LP, Redwood Fin., LLC, Cash Zone, LLC Dba Cash Biz v. Hiawatha Henry, Addie Harris, Montray Norris, & Roosevelt Coleman Jr., No. 04-15-00469-CV (Tex. App.—San Antonio Sept. 3, 2015).published Corp., 361 S.W.2d 193, 196 (Tex. 1962); and (4) we must construe the provisions together if we can, rather than allow one to cancel the other, [**66] In re U.S. Home Corp., 236 S.W.3d 761, 765 (Tex. 2007).
- In re Longoria, 470 S.W.3d 616 (Tex. App.—Houston [14th Dist.] 2015).published In re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex.2007) (orig.proceeding) (per curiam).
- Venture Cotton Coop. & Noble Americas Corp. v. Shelby Alan Freeman, 494 S.W.3d 186 (Tex. App.—Eastland 2015).publishedThe complaining party must present “some evidence that [it] will likely incur arbitration costs in such an amount as to deter enforcement of statutory rights in the arbitral forum.” Id. (citing In re U.S. Home Corp., 236 S.W.3d 761, 764 (T…
- W. Rim Prop. Servs. Inc. v. Paula Bazan-Garcia, No. 04-14-00829-CV (Tex. App.—San Antonio Dec. 31, 2014).published Corp., 531 U.S. at 90-92, 121 S.Ct. at 522-23; In the 2006 Agreement, Aspen does not retain a unilateral, re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex.2007); In unrestricted right to modify or terminate the arbitration re FirstMerit Bank,…
- William Bush & Mari Marc S.A. De C v. v. Cardtronics, Inc. & Cardtronics S.A. De C v., No. 01-12-00708-CV (Tex. App.—Houston [1st Dist.] June 19, 2014).publishedIn re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex. 2007).
- Gary Zars D/B/A Gary's Pool & Patio Store v. Jeremy & Brandi Brownlow, No. 07-07-00303-CV (Tex. App.—Amarillo June 28, 2013).published In re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex. 2007) (orig. proceeding) (per curiam).
- Dish Network L.L.C. v. James Brenner, No. 13-12-00564-CV, 2013 WL 3326640 (Tex. App.—Corpus Christi June 27, 2013).publishedContracting Inc. v. Lujan, 361 S.W.3d 147, 152 (Tex. App.—El Paso 2011, no pet.) (citing In re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex. 2007) (orig. proceeding) (per curiam)); see In re Tenet Healthcare, Ltd., 84 S.W.3d 760, 767 (Tex. Ap…
- Sun Fab Indus. Contracting, Inc. v. Eric Lujan, 361 S.W.3d 147 (Tex. App.—El Paso 2011).published In re U.S. Home Cow, 236 S.W.3d 761, 764 (Tex.2007).
- In Re 24R, Inc., 324 S.W.3d 564 (Tex. 2010).publishedIn re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex.2007) (per curiam).
- in Re: Obra Homes, Inc., No. 13-03-00700-CV (Tex. App.—Corpus Christi June 3, 2010).published 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…
- in Re Mark Todd & Mark W. Todd Architects, No. 10-08-00407-CV (Tex. App.—Waco Mar. 10, 2010).publishedIn re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex. 2007).
- LDF Constr., Inc. v. Bryan, 324 S.W.3d 137 (Tex. App.—Waco 2010).publishedIn re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex.2007).
- In Re Int'l Profit Assocs., Inc., 286 S.W.3d 921 (Tex. 2009).published IPA complains to this Court that the trial court abused its discretion by requiring IPA to prove that it showed the forum-selection clause to Riddell because: (1) there is no obligation to show a specific contractual provision to a party w…
- Lawson v. Archer, 267 S.W.3d 376 (Tex. App.—Houston [14th Dist.] 2008).publishedIn re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex.2007) (per curiam) (citing Randolph, 531 U.S. at 90-91 , 121 S.Ct. 513 ; In re FirstMerit Bank, *385 52 S.W.3d at 757 ).
- in Re: Donald Lawson, Individually & D/B/A V.I.P. Home Inspections & Mark Guillerman, No. 14-07-00429-CV (Tex. App.—Houston [14th Dist.] July 31, 2008).publishedIn re U.S. Home Corp. , 236 S.W.3d 761, 764 (Tex. 2007) (per curiam) (citing Randolph , 531 U.S. at 90 B 91; In re FirstMerit Bank , 52 S.W.3d at 757 ).
- in Re: MHI P'ship, LTD., No. 14-07-00851-CV, 2008 WL 2262157 (Tex. App.—Houston [14th Dist.] May 29, 2008).publishedIn re U.S. Home Corp. , 236 S.W.3d 761, 764 (Tex. 2007) (orig. proceeding) (per curiam); see also In re Halliburton Co. , 80 S.W.3d at 572 (arbitration provision not procedurally unconscionable because employer made A take it or leave it @…
- Aspen Tech., Inc. v. Shasha, 253 S.W.3d 857 (Tex. App.—Houston [14th Dist.] 2008).publishedCorp., 531 U.S. at 90-92 , 121 S.Ct. at 522-23 ; In re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex.2007); In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex.2001); TMI, Inc. v. Brooks, 225 S.W.3d 783, 796 (Tex.App.Houston [14th Dist.] 2007…
- in Re: Int'l Bank of Com. D/B/A Ibc., No. 13-07-00693-CV, 2008 WL 192260 (Tex. App.—Corpus Christi Jan. 18, 2008).unpublishedIn re U.S. Home Corp. , 236 S.W.3d 761, 764 (Tex. 2007) (orig. proceeding) (per curiam); In re AdvancePCS Health L.P. , 172 S.W.3d at 608 ; EZ Pawn Corp. , 934 S.W.2d at 90 .
- in the Interest of T.L.S. & R.L.P., Child., No. 10-04-00099-CV (Tex. App.—Waco June 29, 2005).publishedIn re U.S. Home Corp ., 236 S.W.3d 761, 764 (Tex. 2007).
- Complete Solar, Inc.; T.J. Rodgers; & Brian Wuebbels v. Andy Phu, No. 08-26-00024-CV (June 2, 2026).publishedSee In re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex. 2007) (orig. proceeding) (construing a similar arbitration agreement, and concluding that the parties did not intend to dispense with arbitration if mediation did not occur first and tha…
- 5th & West Owner, L.P., & Joshua Needham v. Daryn Wasek & Donald Wasek, No. 03-20-00458-CV (Tex. App.—Austin Jan. 7, 2022).publishedSee 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 repaire…
- Trujillo v. Volt Mgmt. Corp., No. 3:19-cv-00337, 2020 WL 1906097 (W.D. Tex. Apr. 17, 2020).See In re 24R, Inc., 324 S.W.3d 564, 566 (Tex. 2010) (citing In re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex. 2007) (per curiam) (“Mutual agreement to arbitrate claims provides sufficient consideration to support an arbitration agreement.”…
- HEB Grocery Co. L.P. v. Yolanda Perez, No. 13-18-00063-CV (Tex. App.—Corpus Christi July 25, 2019).publishedTexas courts require “some evidence that a complaining party will likely incur arbitration costs in such an amount as to deter 12 enforcement of statutory rights in the arbitral forum.” In re Poly–Am., 262 S.W.3d at 356 ; accord In re U.S.…
- Noah S. Bunker, Paul Carrell, Everett Brew Houston, Jr., W. Andrew Buchholz, Scott J. Leighty, Jad L. Davis, & Holly Clause v. Tracy D. Strandhagen, No. 03-14-00510-CV (Tex. App.—Austin Jan. 14, 2015).published See In re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex.2007).
- D.R. Horton-Texas, Ltd. v. Elizabeth Drogseth, No. 02-12-00435-CV (Tex. App.—Fort Worth July 3, 2013).publishedSee In re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex. 2007) (orig. proceeding) (rejecting argument that arbitration clause on back of single-sheet contract was unenforceable and noting that ―a party cannot avoid an arbitration clause by sim…
- in Re Emex Holdings Llc, No. 13-11-00145-CV, 2013 WL 1683614 (Tex. App.—Corpus Christi Apr. 18, 2013).publishedCourts have consistently held that a party “must exercise reasonable diligence for the protection of his or her own interests, and a failure to do so is not excused by mere confidence in the honesty and integrity of the other party.” TMI,…
- In Re Poly-Am., L.P., 262 S.W.3d 337 (Tex. 2008).published
- Nw. Constr. Co. v. Oak Partners, L.P., 248 S.W.3d 837 (Tex. App.—Fort Worth 2008).published
- In Re Green Tree Servicing LLC, 275 S.W.3d 592 (Tex. App.—Texarkana 2008).published
- in Re Olshan Found. Repair Co., LLC & Olshan Found. Repair Co. of Dallas, Ltd., 328 S.W.3d 883 (Tex. 2010).published
- Nw. Constr. Co., Inc. v. the Oak Partners, L.P., Morgan Dev. & Supply, Inc., Metroplex Masonry, Inc., Ari-Tex, Inc., Max Plumbing Contractors, Inc., S & S Tile, Ltd., & Kent-Anderson Concrete, L.P. D/B/A Anderson Concrete Constr., No. 02-07-00293-CV (Tex. App.—Fort Worth Mar. 6, 2008).published
- Global Evangelism Educ. Ministries, Inc. D/B/A Cornerstone Christian Schs. v. Brandon Caddell, No. 04-08-00686-CV, 2009 WL 398255 (Tex. App.—San Antonio Feb. 18, 2009).published
- State v. Cody Joe Posey, No. 06-09-00040-CR (Tex. App.—Texarkana Oct. 20, 2009).unpublished
- Josue Gonzalez Rodriguez v. State, No. 13-10-00585-CR (Tex. App.—Corpus Christi June 21, 2012).published
- Caballero v. Contreras, No. 13-10-00150-CV (Tex. App.—Corpus Christi Aug. 31, 2010).published
- Ronald C. Toler v. Vicky Lynn Sanders, F/K/A Vicky Toler, 371 S.W.3d 477 (Tex. App.—Houston [1st Dist.] 2012).published
At page 765 Interpreting contract language to mandate arbitration19 citing casesWhile the [] clause [that either party ‘may request’ arbitration] allowed either party to request arbitration, nothing in it suggests arbitration was optional if either did; to the contrary, the clause constituted a binding promise to arbitrate if either party requested it.
- Hebei Viroad Biotechnology Co., Ltd. v. Phippy LLC, No. 4:24-cv-00555 (S.D. Tex. Mar. 26, 2025).(While the [] clause [that either party ‘may request’ arbitration] allowed either party to request arbitration, nothing in it suggests arbitration was optional if either did; to the contrary, the clause constituted a bi…)
- Matl Constr. Co. F/K/A Stewart-Matl, Ltd. & Travelers Cas. & Sur. Co. of Am. v. Jim Connelly Masonry, Inc., No. 03-08-00559-CV (Tex. App.—Austin July 31, 2009).published (As the nonsignatories’ liability arises from and must be determined by reference to the parties’ contract rather than general obligations imposed by law, the suit is subject to the contract’s arbitration provisions.)
- Pejman Dargahi Kamran Dargahi & Yekk Constr. Servs., LLC D/B/A Lakeway Custom Homes & Renovation v. Dhiraj Handa & Ritu Handa, No. 03-17-00386-CV, 2017 WL 5247517 (Tex. App.—Austin Nov. 8, 2017).publishedBased on the Handas’ own pleadings, there can be no reasonable contention that the Handas engaged in interactions with Kamran and allegedly suffered thereby except in his capacity as a representative of Yekk. 8 Despite the form of their pl…
- Cash Biz, LP, Redwood Fin., LLC, Cash Zone, LLC Dba Cash Biz v. Hiawatha Henry, Addie Harris, Montray Norris, & Roosevelt Coleman Jr., No. 04-15-00469-CV (Tex. App.—San Antonio Sept. 3, 2015).published Corp., 361 S.W.2d 193, 196 (Tex. 1962); and (4) we must construe the provisions together if we can, rather than allow one to cancel the other, [**66] In re U.S. Home Corp., 236 S.W.3d 761, 765 (Tex. 2007).
- G.T. Leach Builders, LLC v. Sapphire V.P., Lp, 458 S.W.3d 502 (Tex. 2015).publishedCorp., 361 S.W.2d 193, 196 (Tex.1962); and (4) we must construe the provisions together if we can, rather than allow one to cancel the other, In re U.S. Home Corp., 236 S.W.3d 761, 765 (Tex.2007).
- AT&T Servs., Inc. v. S&S Utils. Eng'g, LLC, No. 20-0066 (Fla. 4th DCA Aug. 5, 2020).published(interpreting a provision that either party “may request” arbitration as “a binding promise to arbitrate if either party requested it)
- Sam Seidel v. Jaime Cleveland & Jennifer Cleveland, No. 14-17-00540-CV (Tex. App.—Houston [14th Dist.] Aug. 9, 2018).publishedId.; see In re U.S. Home Corp., 236 S.W.3d at 765 (holding clause that permitted either party to request arbitration and did not require permission from other to be and allow one party to reject such a request.
- S. Green Builders, LP & Sam Seidel v. Jaime Cleveland & Jennifer Cleveland, 558 S.W.3d 251 (Tex. App.—Houston [14th Dist.] 2018).publishedId.; see In re U.S. Home Corp., 236 S.W.3d at 765 (holding clause that permitted either party to request arbitration and did not require permission from other to be and allow one party to reject such a request.
- Texas Health Resources & Texas Health Presbyterian Hosp. Dallas D/B/A Presbyterian Hosp. of Dallas v. Michelle Kruse, No. 05-13-01754-CV (Tex. App.—Dallas July 11, 2014).publishedSee In re U.S. Home Corp., 236 S.W.3d 761, 765 (Tex. 2007) (orig. proceeding) (“either party ‘may request’ arbitration”); Feldman/Matz Interests, L.L.P. v. Settlement Capital Corp., 140 S.W.3d 879, 881, 888 (Tex. App.—Houston [14th Dist.]…
- in Re East Rio Hondo Water Supply Corp., No. 13-12-00538-CV (Tex. App.—Corpus Christi Oct. 29, 2012).publishedSee In re U.S. Home Corp., 236 S.W.3d 761, 765 (Tex. 2007) (orig. proceeding); In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 191 (Tex. 2007) (orig. proceeding); In re Weekley Homes, L.P., 180 S.W.3d 127 , 131–32 (Tex. 2005) (orig. pro…
Show 7 more citing cases
- Hal Rachal, Jr. v. John W. Reitz, 403 S.W.3d 840 (Tex. 2013).published
- Roberto Melendez v. David & Helen De Lemos, No. 01-07-00115-CV (Tex. App.—Houston [1st Dist.] May 22, 2008).published
- in Re: Hartford Life Ins. Co., Jan Mohamed & King, Mohamed & Assocs., No. 13-08-00603-CV (Tex. App.—Corpus Christi June 3, 2009).published
- Loa's Tire & Auto Supply, Inc. v. Endover Funding, Inc. & Nat'l Hertiage Life Ins. Co. in Liquidation, No. 13-99-00167-CV (Tex. App.—Corpus Christi June 3, 2009).published
- Hartford Life Ins. Co., Jan Mohamed, & King Mohamed & Assocs., Inc. v. Michael Forman, Individually & Michael Forman, M.D., P.A., No. 13-08-00547-CV, 2009 WL 1546924 (Tex. App.—Corpus Christi June 3, 2009).published
- Craddick Partners, LTD. v. Enersciences Holdings, LLC, Chem Rock Tech., LLC, Rapid Drilling, LLC, & Permian Basin Ventures, LLC, No. 11-15-00014-CV (Tex. App.—Eastland July 14, 2016).unpublished
- Mainthia Tech., Inc. & Hemant Mainthia v. Recruiting Force, LLC D/B/A Recruit Vets., on Behalf of Itself & Derivatively on Behalf of RVMTI, LLC, No. 03-20-00402-CV (Tex. App.—Austin Feb. 12, 2021).published
At page 763 Determining sufficiency of arbitration agreement language4 citing casesholding that a schedule of the AAA’s usual fees was “not enough” to invalidate an agreement to arbitrate “in accordance with the [AAA’s] Commercial or Construction Industry Arbitration Rules, as appropriate
- Famous Water Co., L.P., Crazy Bottling Co., LLC, Famous Water Holdings, LLC, Scott Elder, Carol Elder, Troy Huseman, Kelli Huseman, Jack Bradshaw, Janet Bradshaw, Tom Fireoved, & Mike Modano v. Aquio Solutions Intermediate Holdings, LLC, No. 02-23-00329-CV, 2024 WL 2971686 (Tex. App.—Fort Worth June 13, 2024).published Leach Builders, 458 S.W.3d at 510 .9 There are far fewer cases that discuss the use of “may” in arbitration clauses, and sometimes those clauses are held to be mandatory despite the general distinctions between “may” and “shall.” Compare I…
- Houston an USA, LLC D/B/A Autonation USA Houston v. Walter Shattenkirk, 669 S.W.3d 392 (Tex. 2023).published Pertinent factors include whether “the total cost of arbitration is comparable to the total cost of litigation” and “the claimant’s overall ability to pay the arbitration fees and costs.” Id. at 894-95. 1 Further, making the required showi…
- Atlas Gulf-coast, Inc. v. Stanford, 299 S.W.3d 356 (Tex. App.—Houston [14th Dist.] 2009).published
- In Re Atlas Gulf-coast Inc d/b/a Atlas Found. Repair, No. 14-08-01155-CV (Tex. App.—Houston [14th Dist.] Aug. 20, 2009).published
Two couples brought claims on behalf of themselves and others similarly situated alleging their homes were built without shower pans. They concede their contracts contained broad arbitration clauses governed by the Federal Arbitration Act, and do not dispute that their claims fall within the scope of those clauses. Instead, they raise seven contract defenses to enforcement, five of which the trial court cited in refusing to compel arbitration. As there is no evidence to support any of the seven grounds, we conditionally grant mandamus relief. See In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex. 2005) (“Mandamus relief is proper to enforce arbitration agreements governed by the FAA.”).
In the sales contracts Luis and Norma Cano and Mark and Gloria Schlatter signed with U.S. Home Corporation, the parties agreed to mediate and arbitrate all controversies that might arise related to the agreement:
Any controversy or claim arising under or related to this Agreement ... shall be determined by mediation or by binding arbitration as provided by the Federal Arbitration Act (9 U.S.C. Sections 1-14) and similar state statutes and not by a court of law. The claim will first be mediated in accordance with the Commercial or Construction Industry Arbitration Rules, as appropriate, of the American Arbitration Association. If not resolved by mediation, the claim will be settled in accordance with the Commercial or Construction Industry Arbitration Rules, as appropriate, of the American Arbitration Association....
Written warranties for both homes also provided for arbitration (but not mediation) of any disputes about whether warranty repairs were necessary.
Several years after closing, the buyers asserted that a shower in each home had no pan or lining, and alleged claims for repairs, mold remediation, medical bills, and mental anguish. Finding U.S. Home’s remediation plan inadequate, they filed suit in Cameron County against U.S. Home, Lennar Corporation, and three U.S. Home employees. [1] The defendants moved to compel arbitration, and the plaintiffs moved to certify their class claims. The trial court denied the former and granted the latter in a half-day hearing.
[*764] First, the trial court found the arbitration clauses were contracts of adhesion and thus procedurally unconscionable. “Adhesion contracts are not automatically unconscionable, and there is nothing per se unconscionable about arbitration agreements.” In re AdvancePCS Health L.P., 172 S.W.3d 603, 608 (Tex.2005) (per curiam); see also In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 678 (Tex.2006). Here, the plaintiffs proved only that U.S. Home refused to contract with them unless they agreed to arbitration. This is not enough. Palm Harbor, 195 S.W.3d at 678-79; AdvancePCS, 172 S.W.3d at 608; In re Halliburton Co., 80 S.W.3d 566, 572 (Tex.2002); In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex.2001).
Second, the trial court found the arbitration agreements were procured by fraud. The plaintiffs pointed to no evidence of misrepresentations, scienter, or reliance, instead arguing only that the arbitration clause was on the back of their single-sheet contract. As they concede no one prevented them from reading both sides, this is not fraud. Like any other contract clause, a party cannot avoid an arbitration clause by simply failing to read it. In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 190 (Tex.2007); AdvancePCS, 172 S.W.3d at 608; EZ Pawn Corp. v. Mandas, 934 S.W.2d 87, 90 (Tex.1996).
Third, the trial court found the arbitration clauses were not supported by mutual consideration. As both parties agreed to arbitration, this is again simply wrong. Palm Harbor, 195 S.W.3d at 676; AdvancePCS, 172 S.W.3d at 607. The plaintiffs point to two contractual provisions allowing U.S. Home to terminate the agreement if their home was damaged before closing, or if the buyers failed to pay. Neither of these provisions allowed U.S. Home to cancel the contracts at will, or to opt out of arbitration if there was a dispute regarding whether it had properly done so. See Halliburton, 80 S.W.3d at 569 (noting that even if employer terminated contract, it would be bound to arbitrate resulting disputes).
Fourth, the trial court found arbitration would be unduly burdensome and costly. To sustain such a defense, both the United States Supreme Court and this Court require specific evidence that a party will actually be charged excessive arbitration fees. Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90-91, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000); FirstMerit Bank, 52 S.W.3d at 757. Here, the plaintiffs presented no evidence other than a schedule of the American Arbitration Association’s usual fees. This is not enough. Green Tree, 531 U.S. at 90 n.- 6, 121 S.Ct. 513; FirstMerit Bank, 52 S.W.3d at 757.
Fifth, the trial court found that mediation was a condition precedent to arbitration, and the former having yet to occur the latter could not be compelled. But while the parties’ agreements clearly contemplated mediation before arbitration, there is no indication they intended to dispense with arbitration if mediation did not occur first. To the contrary, the warranty agreements that form part of the same transaction require arbitration without any mention of mediation, indicating the parties intended to arbitrate regardless. The plaintiffs allege no damage from U.S. Home’s failure to invoke mediation first, and are hardly in a position to do so as (1) they too did not bother with mediation before seeking class certification, and (2) they concede mediation has taken place while this case was under review. Although the plaintiffs could have asked the trial court to delay arbitration pending mediation, there was no basis for asking the trial court to cancel it entirely.
[*765] In this proceeding, the plaintiffs claim arbitration was not mandatory because while the sales agreements required arbitration, the Canos’ warranty book said only that either party “may request” arbitration. We disagree that this renders the contracts ambiguous. We must construe the parties’ contracts together if we can, rather than allowing one to cancel the other as the plaintiffs suggest. In re AdvaneePCS Health L.P., 172 S.W.3d 603, 606 (Tex.2005) (per curiam) (holding series of agreements must be construed together in determining whether parties agreed to arbitration). While the warranty’s clause allowed either party to request arbitration, nothing in it suggests arbitration was optional if either did; to the contrary, the clause constituted a binding promise to arbitrate if either party requested it. See Local 771, I.A. T.S.E., AFL-CIO v. RKO Gen., Inc. WOR Div., 546 F.2d 1107, 1115-16 (2d Cir.1977) (holding contract that provided “parties may submit to arbitration ... upon written request of either party” did not make arbitration optional). U.S. Home having done so, the Canos could not opt out thereafter.
Additionally, the plaintiffs argue they do not have to arbitrate with the individual defendants, as only U.S. Home signed the agreement. Assuming this argument can be raised for the first time on mandamus review, we find it without merit. None of these individuals had a duty to supply shower pans but for the plaintiffs’ contracts with U.S. Home. “[A] litigant who sues based on a contract subjects him or herself to the contract’s terms.” In re FirstMerit Bank, N.A., 52 S.W.3d 749, 755 (Tex.2001). As the nonsignatories’ liability arises from and must be determined by reference to the parties’ contract rather than general obligations imposed by law, the suit is subject to the contract’s arbitration provisions. In re Weekley Homes, L.P., 180 S.W.3d 127, 131-32 (Tex.2005); see also In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 762 (Tex.2006) (“When contracting parties agree to arbitrate all disputes ‘under or with respect to’ a contract (as they did here), they generally intend to include disputes about their agents’ actions .... ”).
Finally, the defendants request that we reverse the trial court’s class certification order as well, pointing out that the United States Supreme Court has expressly held an arbitration clause covering “all disputes relating to a contract” includes disputes about class certification. See Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 451, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003). As the certification order is apparently pending but abated in the Thirteenth Court of Appeals, we decline the invitation as premature.
Accordingly, without hearing oral argument, Tex. R. App.. P. 52.8(c), we conditionally grant relators’ petition for writ of mandamus and direct the trial court to grant their motion to compel arbitration. We are confident the court will comply promptly, and our writ will issue only if it does not.
. The individual defendants are David Garcia, Fabian Diaz, and Sheldon Moore. The plaintiffs also sued Bill Armstrong and Adalberto Gutierrez, neither of which has apparently answered, and thus are not parties in this proceeding.