power rule in Texas

2022See, e.g., Saxa Inc. v. DFD Architecture Inc., 312 S.W.3d 224, 228 (Tex. App.—Dallas 2010, pet. denied) (discussing AAA rules); PER Group, L.P. v. Dava Oncology, L.P., 294 S.W.3d 378, 386 (Tex. App.— Dallas 2009, no pet.) (discussing Commercial Arbitration Rule R-7). –13– all defenses to arbitration, including validity of the arbitration provision, were delegated to the arbitrator.

2010The arbitration clause in the earnest money contract stated that arbitration would be conducted "in accordance with the Commercial Arbitration Rules of the American Arbitration Association." Rule 7(a) of the Commercial Arbitration Rules provides that an arbitrator has the power to rule on his own jurisdiction, "including any objections with respect to the existence, scope, or validity of the arbitration agreement." "When . . . the parties agree to a broad arbitration clause and explicitly incorporate rules that empower an arbitrator to decide issues of arbitrability, the incorporation serves a

2015IHS Acquisition No. 131, Inc. v. Iturralde, 387 S.W.3d 785, 793 (Tex.App.--El Paso 2012, no pet.).

2015IHS Acquisition No. 131, Inc. v. Iturralde, 387 S.W.3d 785, 793 (Tex.App.--El Paso 2012, no pet.).

2019The American Arbitration Association (AAA) rules “state that ‘[t]he arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.’” Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 687 F.3d 671, 675 (5th Cir. 2012) (quoting AAA Rule 7(a)).

2015We recognize that the Fifth Circuit, in interpreting a contract under Texas law, appears to have held that under this State’s law, mere incorporation by reference of arbitration rules “presents clear and unmistakable evidence that the parties agreed to arbitrate arbitrability." Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 687 F.3d 671, 675 (5th Cir.2012).

2015Haddock v. Quinn, 287 S.W.3d 158, 173 (Tex.App.--Fort Worth 2009, orig. proceeding)[Internal citations and quotation marks omitted].

2010The arbitration clause in the earnest money contract stated that arbitration would be conducted "in accordance with the Commercial Arbitration Rules of the American Arbitration Association." Rule 7(a) of the Commercial Arbitration Rules provides that an arbitrator has the power to rule on his own jurisdiction, "including any objections with respect to the existence, scope, or validity of the arbitration agreement." "When . . . the parties agree to a broad arbitration clause and explicitly incorporate rules that empower an arbitrator to decide issues of arbitrability, the incorporation serves a

2023The trial court will presumptively retain the power to rule on gateway contract validity issues unless there is “clear, explicit evidence to the contrary.” See Lucchese Boot Co., 473 S.W.3d at 399 (finding that the delegation of certain claims to an arbitrator and the reservation of certain claims for the trial court did not evince an intent to submit gateway claims related to the container contract to arbitration). • Step #3: If the arbitration clause delegates contract validity questions to the arbitrator, is the party resisting arbitration levelling complaints about the validity of the arbi

2023The trial court will presumptively retain the power to rule on gateway contract validity issues unless there is “clear, explicit evidence to the contrary.” See Lucchese Boot Co., 473 S.W.3d at 399 (finding that the delegation of certain claims to an arbitrator and the reservation of certain claims for the trial court did not evince an intent to submit gateway claims related to the container contract to arbitration). • Step #3: If the arbitration clause delegates contract validity questions to the arbitrator, is the party resisting arbitration levelling complaints about the validity of the arbi

2022See, e.g., Saxa Inc. v. DFD Architecture Inc., 312 S.W.3d 224, 228 (Tex. App.—Dallas 2010, pet. denied) (discussing AAA rules); PER Group, L.P. v. Dava Oncology, L.P., 294 S.W.3d 378, 386 (Tex. App.— Dallas 2009, no pet.) (discussing Commercial Arbitration Rule R-7). –13– all defenses to arbitration, including validity of the arbitration provision, were delegated to the arbitrator.

2021See, e.g., Saxa Inc. v. DFD Architecture Inc., 312 S.W.3d 224, 228 (Tex. App.—Dallas 2010, pet. denied) (discussing AAA rules); PER Group, L.P. v. Dava Oncology, L.P., 294 S.W.3d 378, 386 (Tex. App.— Dallas 2009, no pet.) (discussing Commercial Arbitration Rule R-7). –13– all defenses to arbitration, including validity of the arbitration provision, were delegated to the arbitrator.

2019See In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding) (“Under the FAA, whether an arbitration agreement binds a nonsignatory is a gateway matter to be determined by courts rather than arbitrators unless the parties clearly and unmistakably provide otherwise.” (citing Weekley Homes, 180 S.W.3d at 130 )); Friedman & Feiger, LLP v. Massey, Nos. 02-18-00401-CV, 02-18-00402-CV, 2019 WL 3269325 , at *7 (Tex. App.—Fort Worth July 18, 2019, pet. filed) (mem. op. on reh’g) (“Ordinarily, the trial court retains the power to rule on gateway issues such as the validity and

2015See Nazareth Hall Nursing Ctr. v. Melendez, 372 S.W.3d 301, 305 (Tex.App. – El Paso 2012, no pet.); see also In re Morgan Stanley & Co., 293 S.W.3d 182, 190 (Tex. 2009) (orig. proceeding) (any claim that questions the existence of an arbitration agreement is a question for the court); In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex. 2005) (orig. proceeding) (generally, courts not arbitrators consider gateway issues such as whether a valid arbitration clause exists); In re Rubiola, 334 S.W.3d 220 , 224–25 (Tex. 2011) (orig. proceeding) (whether a non-signatory can compel arbitration depends

2015Both federal and Texas courts hold that “[w]hen . . . the parties agree to a broad arbitration clause and explicitly incorporate rules that empower an arbitrator to decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the parties’ intent to delegate such issues to an arbitrator.” Rio Grande Xarin, II, Ltd. v. Wolverine Robstown, LP, 2010 Tex. App. LEXIS 5189 at *22-*23, 2010 WL 2697145 (Tex. App.—Corpus Christi July 6, 2010, pet. dism’d)(mem. op)(quoting Saxa v. DFD Architecture Inc., 312 S.W.3d 224, 230 (Tex. App.—Dallas 2010, pet. denied), and citing

2011See Haddock, 287 S.W.3d at 172-73 (discussing cases); Burlington, 249 S.W.3d at 40-42 (same).

2023Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 588 (Tex. 2015).

2023Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 588 (Tex. 2015).

2018See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim.

2018See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim.

2015See Nazareth Hall Nursing Ctr. v. Melendez, 372 S.W.3d 301, 305 (Tex.App.-El Paso 2012, no pet.); see also In re Morgan Stanley & Co., 293 S.W.3d 182, 190 (Tex.2009) (orig. proceeding) (any claim that questions the existence of an arbitration agreement is a question for the court); In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex.2005) (orig. proceeding) (generally, courts not arbitrators consider gateway issues such as whether a valid arbitration clause exists); • In re Rubiola, 334 S.W.3d 220, 224-25 (Tex.2011) . (orig. proceeding) (whether a non-signatory can compel arbitration depends ■

2015See Nazareth Hall Nursing Ctr. v. Melendez, 372 S.W.3d 301, 305 (Tex.App. – El Paso 2012, no pet.); see also In re Morgan Stanley & Co., 293 S.W.3d 182, 190 (Tex. 2009) (orig. proceeding) (any claim that questions the existence of an arbitration agreement is a question for the court); In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex. 2005) (orig. proceeding) (generally, courts not arbitrators consider gateway issues such as whether a valid arbitration clause exists); In re Rubiola, 334 S.W.3d 220 , 224–25 (Tex. 2011) (orig. proceeding) (whether a non-signatory can compel arbitration depends

2015Both federal and Texas courts hold that “[w]hen . . . the parties agree to a broad arbitration clause and explicitly incorporate rules that empower an arbitrator to decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the parties’ intent to delegate such issues to an arbitrator.” Rio Grande Xarin, II, Ltd. v. Wolverine Robstown, LP, 2010 Tex. App. LEXIS 5189 at *22-*23, 2010 WL 2697145 (Tex. App.—Corpus Christi July 6, 2010, pet. dism’d)(mem. op)(quoting Saxa v. DFD Architecture Inc., 312 S.W.3d 224, 230 (Tex. App.—Dallas 2010, pet. denied), and citing

2010Oil & Gas Co. LP v. San Juan Basin Royalty Trust , 249 S.W.3d 34, 41 (Tex. App.-Houston [1st Dist.] 2007, pet. denied) ("We are also mindful that, in certain circumstances, the incorporation of AAA rules may constitute clear and unmistakable evidence of an intent to allow an arbitrator to decide issues of arbitrability."); see also Qualcomm Inc. v. Nokia Corp. , 466 F.3d 1366, 1368, 1373 (Fed.

2015See Nazareth Hall Nursing Ctr. v. Melendez, 372 S.W.3d 301, 305 (Tex.App.-El Paso 2012, no pet.); see also In re Morgan Stanley & Co., 293 S.W.3d 182, 190 (Tex.2009) (orig. proceeding) (any claim that questions the existence of an arbitration agreement is a question for the court); In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex.2005) (orig. proceeding) (generally, courts not arbitrators consider gateway issues such as whether a valid arbitration clause exists); • In re Rubiola, 334 S.W.3d 220, 224-25 (Tex.2011) . (orig. proceeding) (whether a non-signatory can compel arbitration depends ■

2015See Nazareth Hall Nursing Ctr. v. Melendez, 372 S.W.3d 301, 305 (Tex.App. – El Paso 2012, no pet.); see also In re Morgan Stanley & Co., 293 S.W.3d 182, 190 (Tex. 2009) (orig. proceeding) (any claim that questions the existence of an arbitration agreement is a question for the court); In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex. 2005) (orig. proceeding) (generally, courts not arbitrators consider gateway issues such as whether a valid arbitration clause exists); In re Rubiola, 334 S.W.3d 220 , 224–25 (Tex. 2011) (orig. proceeding) (whether a non-signatory can compel arbitration depends

2008See Norman, 191 S.W.3d at 861 .

2008See Norman , 191 S.W.3d at 861 .

2015See Nazareth Hall Nursing Ctr. v. Melendez, 372 S.W.3d 301, 305 (Tex.App.-El Paso 2012, no pet.); see also In re Morgan Stanley & Co., 293 S.W.3d 182, 190 (Tex.2009) (orig. proceeding) (any claim that questions the existence of an arbitration agreement is a question for the court); In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex.2005) (orig. proceeding) (generally, courts not arbitrators consider gateway issues such as whether a valid arbitration clause exists); • In re Rubiola, 334 S.W.3d 220, 224-25 (Tex.2011) . (orig. proceeding) (whether a non-signatory can compel arbitration depends ■

2015See Nazareth Hall Nursing Ctr. v. Melendez, 372 S.W.3d 301, 305 (Tex.App. – El Paso 2012, no pet.); see also In re Morgan Stanley & Co., 293 S.W.3d 182, 190 (Tex. 2009) (orig. proceeding) (any claim that questions the existence of an arbitration agreement is a question for the court); In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex. 2005) (orig. proceeding) (generally, courts not arbitrators consider gateway issues such as whether a valid arbitration clause exists); In re Rubiola, 334 S.W.3d 220 , 224–25 (Tex. 2011) (orig. proceeding) (whether a non-signatory can compel arbitration depends

2008Id. at 304 .

2005Inc. v. Custom Controls Co., 761 S.W.2d 302, 304 (Tex.1988) (noting that on a motion for judgment in a non-jury case, the trial judge has the power to rule on the legal and factual sufficiency of the evidence).

2024Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 846 (Tex. App.—Austin 2002, pet. denied).

2024See Day Cruises Mar., L.L.C v. Christus Spohn Health Sys., 267 S.W.3d 42, 53 (Tex. App.—Corpus Christi–Edinburg 2008, pet. denied) (citations omitted) (defining the elements of a suit on sworn account to include “that the amount of the account is just, that is, that the prices were charged in accordance with an agreement or were customary and reasonable prices”). 4 We do not consider Power’s motion to transfer venue as part of our waiver analysis.

2024See Henry, 551 S.W.3d at 116 . 2 A. Substantial Invocation of Judicial Process Sun filed a response to Power’s motion to compel arbitration in the trial court in which it specifically argued that “[a]t every step of litigation, for almost 4 years, Power took every opportunity to engage in litigation leading everyone to believe the case would go to trial.” Sun further noted that “[d]uring the 46 month delay” before filing its motion to compel arbitration, “Power: 1) agreed to a jury trial; 2) responded to multiple requests for written discovery; 3) sent multiple written discovery requests; 4) d

2020See Mayer v. State, 494 S.W.3d 844, 848 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).

2019We cited Bazzle as holding that whether a contract “‘forbids the use of class arbitration procedures[] is a dispute ‘relating to’” the parties’ contract and that “as a question of contract interpretation, the issue of class arbitrability had [therefore] been committed to the arbitrator.”37 In Bazzle, a plurality of the Supreme Court had concluded that the availability of class arbitration is a contract-interpretation question to be arbitrated because it implicates “what kind of arbitration proceeding the parties agreed to,” rather than an arbitrability question that implicates “the validity of

2019We cited Bazzle as holding that whether a contract “‘forbids the use of class arbitration procedures[] is a dispute ‘relating to’” the parties’ contract and that “as a question of contract interpretation, the issue of class arbitrability had [therefore] been committed to the arbitrator.”37 In Bazzle, a plurality of the Supreme Court had concluded that the availability of class arbitration is a contract-interpretation question to be arbitrated because it implicates “what kind of arbitration proceeding the parties agreed to,” rather than an arbitrability question that implicates “the validity of

2019See In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding) (“Under the FAA, whether an arbitration agreement binds a nonsignatory is a gateway matter to be determined by courts rather than arbitrators unless the parties clearly and unmistakably provide otherwise.” (citing Weekley Homes, 180 S.W.3d at 130 )); Friedman & Feiger, LLP v. Massey, Nos. 02-18-00401-CV, 02-18-00402-CV, 2019 WL 3269325 , at *7 (Tex. App.—Fort Worth July 18, 2019, pet. filed) (mem. op. on reh’g) (“Ordinarily, the trial court retains the power to rule on gateway issues such as the validity and

2019We cited Bazzle as holding that whether a contract “‘forbids the use of class arbitration procedures[] is a dispute ‘relating to’” the parties’ contract and that “as a question of contract interpretation, the issue of class arbitrability had [therefore] been committed to the arbitrator.”37 In Bazzle, a plurality of the Supreme Court had concluded that the availability of class arbitration is a contract-interpretation question to be arbitrated because it implicates “what kind of arbitration proceeding the parties agreed to,” rather than an arbitrability question that implicates “the validity of