Date: 11-23-2022

Case Style:

Taylor Morrison of Texas, Inc. and Taylor Woodrow Communities-League City. Ltd. v. Rodney Goff

Case Number: 01-21-00404-CV

Judge: Richard Hightower

Court:

First Court of Appeals Houston, Texas

On appeal from the County Court at Law No. 1 Galveston County, Texas

Plaintiff's Attorney: Carl J. Wilkerson
James Watts Rudnicki
Diana Alcala
David M. Jones
Meghan Paulk-Ingle

Defendant's Attorney: Houston, TX - Best Real Estate Lawyer Directory

Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World.

Re: MoreLaw National Jury Verdict and Settlement

Counselor:
MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public.

MoreLaw will publish litigation reports submitted by you free of charge

Info@MoreLaw.com - 855-853-4800

Description:

Houston, Texas – Real Estate lawyer represented Appellee with alleging defective construction of his home.

In December 2014, Rodney Goff signed a purchase agreement for the
purchase of a new home to be constructed by Taylor Woodrow in the Mar Bella
subdivision of League City. The construction of the home was completed in August
2015.
Three years later, in November 2018, Goff sued Appellants Taylor Woodrow
and Taylor Morrison.1 He alleged that testing had revealed elevated levels of mold
and mold-related toxins in his home. Goff claimed that the home was defectively
constructed, causing moisture problems, which led to mold growth. He also alleged
that Appellants had been aware of mold issues in other Mar Bella homes constructed
by Taylor Woodrow before he had purchased his home, but Appellants had failed to
disclose the issues to him. Goff’s causes of action included negligent construction,
breach of implied warranty, fraud in a real estate transaction, violation of the
Deceptive Trade Practices Act, and breach of contract. He sought to recover actual
and exemplary damages as well as his attorney’s fees.
1 The record reflects that Taylor Morrison had an ownership interest in Taylor
Woodrow.
4
Based on the arbitration agreement and the FAA, Appellants filed a motion to
compel arbitration and abate the trial court’s proceedings. The arbitration agreement,
found in paragraph 11 of the purchase agreement, provides in relevant part as
follows:
11) Dispute Resolution—Arbitration:
Any and all claims, controversies, breaches or disputes by or between
the parties hereto, arising out of or related to this Purchase Agreement,
the property, the subdivision or community of which the property is a
part . . . whether such dispute is based on contract, tort, statute, or
equity, including without limitation, any dispute over [an (a)–(h) list of
specific causes of action] or (i) any other matter arising out of or related
to the interpretation of any term or provision of this Purchase
Agreement, or any defense going to the formation or validity of the
agreement, or any provision of this Purchase Agreement, including
earnest money disputes, this arbitration agreement, allegations of
unconscionability, fraud in the inducement, or fraud in the execution,
whether such dispute arises before or after closing (each a “Dispute”),
shall be arbitrated pursuant to the Federal Arbitration Act and subject
to the procedures set forth as follows:
a. This arbitration agreement shall be deemed to be a self-executing
arbitration agreement. Any Dispute concerning the interpretation
or the enforceability of this arbitration agreement, including
without limitation, its revocability or voidability for any cause,
any challenges to the enforcement or the validity of the
agreement, or this arbitration agreement, or the scope of
arbitrable issues under this arbitration agreement, and any
defense relating to the enforcement of this arbitration agreement,
including without limitation, waiver, estoppel, or laches, shall be
decided by an arbitrator in accordance with this arbitration
agreement and not a court of law.
b. In the event that a Dispute arises between the parties, such
Dispute shall be resolved by and pursuant to the arbitration rules
and procedures of [the] American Arbitration Association in
5
effect at the time the request for arbitration is submitted. In the
event the American Arbitration Association is for any reason
unwilling or unable to serve as the arbitration service, then the
parties shall select another reputable arbitration service. If the
parties are unable to agree on an alternative service, then either
party may petition any court of competent jurisdiction in the
county in which the property is located to appoint such an
alternative service, which shall be binding on the parties. The
rules and procedures of such alternative service in effect at the
time the request for arbitration is submitted shall be followed.
c. The Buyer and Seller expressly agree and acknowledge that this
Purchase Agreement involves and concerns interstate commerce
and is governed by the provisions of the Federal Arbitration Act
(9 U.S.C. §1 et seq.) now in effect and as the same may from
time to time be amended, to the exclusion of any different or
inconsistent state or local law, ordinance, regulation, or judicial
rule. Accordingly, any and all Disputes shall be arbitrated—
which arbitration shall be mandatory and binding—pursuant to
the Federal Arbitration Act.
. . . .
e. In the event any Dispute arises under the terms of the Purchase
Agreement or in the event of the bringing of any arbitration
action by a party hereto against another party hereunder by
reason of any breach of any of the covenants, agreements or
provisions on the part of the other party arising out of this
Purchase Agreement, then all fees and costs shall be borne
separately between the parties, including but not limited to all
attorneys’ fees and expert witness costs resulting from the
Dispute. The foregoing provision does not modify any provision
of any contract between Seller and any third-party requiring
indemnification or establishing a different allocation of fees and
costs between Seller and such third party. In the event Buyer is
an entity and not a natural person and Seller is the prevailing
party the individual signing this Purchase Agreement on behalf
of such entity shall also be personally liable for Seller’s fees and
costs as aforesaid notwithstanding any indication that such
individual is signing in a corporate capacity. The provisions of
6
this paragraph shall survive closing or termination of this
Purchase Agreement.
f. The Arbitrator shall be authorized to provide all recognized
remedies in law or in equity for any cause of action that is the
basis of the arbitration.
. . . .
h. To the extent that any state or local law, ordinance, regulation,
or judicial rule is inconsistent with any provision of the rules of
the arbitration service under which the arbitration proceeding
shall be conducted, the latter rules shall govern the conduct of
the proceeding.
. . . .
l. If any provision of this arbitration agreement shall be determined
to be unenforceable or to have been waived, the remaining
provisions shall be deemed severable therefrom and enforceable
according to their terms.2
In their motion to compel, Appellants asserted that they had “an enforceable
arbitration agreement [with Goff] subject to the Federal Arbitration Act, which
delegates the determination of the arbitrability of [Goff’s] claims against
[Appellants] to an arbitrator pursuant to the rules and procedures of the American
Arbitration Association.” Appellants sought “to compel [Goff] to initiate arbitration
to resolve their claims and, specifically, to submit the determination of the
arbitrability of their claims to an arbitrator.” Appellants relied on subparagraph (a)
2
In the purchase agreement, portions of the arbitration agreement contained in
paragraph 11 appeared in all capital letters and boldface, but we have normalized
the capitalization and omitted the boldface for readability.
7
of the arbitration agreement, which contained a delegation provision, delegating to
the arbitrator, among other things, the authority to determine threshold issues of
arbitrability, including enforceability of the agreement and defenses to enforcement.
Appellants also asserted, “If [Goff] refuses to abide by the arbitration agreement,
this Court must enforce the parties’ agreement and compel [Goff] to initiate
arbitration with the AAA so that an arbitrator can determine the arbitrability of his
claims.”
Goff responded to the motion to compel, opposing it. He contended that
certain provisions of the arbitration agreement were substantively unconscionable
for three reasons. First, he contended that the delegation provision was
unconscionable because it “contract[ed] away the authority of [the trial court] to
decide gateway issues.”
Second, Goff asserted that, because subparagraph (b) of the arbitration
agreement required him to arbitrate with the AAA, the agreement “forces [him] to
litigate in an inaccessible and prohibitively expensive forum.” Because his claimed
damages were over $1 million, Goff asserted that he would be required to arbitrate
under the AAA’s “Construction Industry Arbitration Rules and Mediation
Procedures.” He attached the AAA’s rules and procedures to his response, which
included the fee schedule for filing arbitration. The fee schedule showed that, for
claims over $1 million, the filing fee totaled $14,700. He asserted that the filing fee
8
was “on top of the $400–$500 hourly fee of the arbitrators.” Goff offered the
affidavit of his attorney to show that, in two other suits filed against Appellants on
behalf of Mar Bella homeowners, those homeowners had been assessed arbitration
fees of $20,475.00 and $24,327.19, respectively, to arbitrate the merits of their
claims.
Goff also offered his affidavit. He testified that the cost of arbitration—that
is, the AAA filing fee and the $20,000 to $25,000 in arbitrator’s fees incurred in
other cases against Appellants—had not been disclosed to him when he signed the
purchase agreement. He stated that the “cost of filing an arbitration under the AAA
came at [sic] a great surprise to me and is a significant burden and hindrance to my
ability to seek recovery for construction defects to my home[.]” Goff testified that,
“[i]f we have to pay these costs to start the arbitration and pay the arbitrator[’]s fees
as they are incurred, it could force us to drop our claim.”
And third, Goff asserted that the arbitration agreement “attempts to strip [him
of his] statutory rights and remedies.” Subparagraph (f) of the arbitration agreement
states that “the arbitrator shall be authorized to provide all recognized remedies
available in law or in equity for any cause of action that is the basis of the
arbitration.” In his petition, Goff asserted causes of action—including breach of
contract, statutory real estate fraud, and violation of the Deceptive Trade Practices
Act—for which he could recover attorney’s fees if he prevailed. His pleading also
9
referenced the Residential Construction Liability Act, which allows recovery of
attorney’s and expert’s fees if a plaintiff pleads and successfully proves a cause of
action for which those fees are recoverable.
In opposition to Appellants’ motion to compel, Goff asserted that
subparagraphs (e) and (h) in the arbitration agreement are substantively
unconscionable because Appellants have cited those same provisions in other cases
to limit homeowners’ statutory rights to recover attorney’s fees and expert’s fees.
Subparagraph (e) provides that “all fees and costs shall be borne separately between
the parties,” and subparagraph (h) provides that, “[t]o the extent that any state or
local law, ordinance, regulation, or judicial rule is inconsistent with any provision of
the rules of the arbitration service under which the arbitration proceeding shall be
conducted, the latter rules shall govern the conduct of the proceeding.”
Because the arbitration agreement did not allow the award of fees and costs,
Goff asserted that Appellants may argue at arbitration that the award of fees and
costs to him is not allowed, as they have argued in other cases. Goff offered
Appellants’ responses to motions to confirm arbitration awards filed by homeowners
in other suits to demonstrate that Appellants had argued in those suits that the
homeowners’ rights to recover attorney’s and expert’s fees should be limited based
on subparagraphs (e) and (h) after the fees were awarded to the homeowners by an
arbitrator.
10
Goff urged, “[I]n the event [the trial court found] that the arbitration clause
[was] not unconscionable in its entirety, the [trial court] should strike and sever those
above-mentioned portions of the arbitration agreement from the contract as
unconscionable.” He pointed out that subparagraph (l) of the arbitration agreement
provided, “If any provision of this arbitration agreement shall be determined to be
unenforceable or to have been waived, the remaining provisions shall be deemed
severable therefrom and enforceable according to their terms.” Goff cited case law3
indicating that the proper course of action for the trial court was to sever the
provisions of the arbitration agreement that he had previously assailed as rendering
the arbitration agreement unenforceable—which by implication included the
delegation provision—from the remainder of the arbitration agreement and order the
parties to arbitrate with an arbitration service less expensive than the AAA.
Appellants filed a supplemental motion to compel and a reply to Goff’s
response. Appellants emphasized that “the ‘delegation clause’ in [the] arbitration
agreement is ‘valid, irrevocable and enforceable’ and the law requires that it be
enforced.” They asserted, as they had in their motion to compel, that “gateway issues
concerning the interpretation or enforceability of this arbitration agreement are to be
3 See In re Poly-Am., L.P., 262 S.W.3d 337, 360 (Tex. 2008) (orig. proceeding)
(applying principle that “[a]n illegal or unconscionable provision of a contract may
generally be severed so long as it does not constitute the essential purpose of the
agreement” in dispute involving arbitration agreement).
11
decided by the arbitrator.” Thus, they argued, Goff’s challenges to the enforceability
of the arbitration agreement’s provisions, like subparagraph (e), should be
determined by the arbitrator. Appellants indicated that a delegation provision must
be enforced unless it is specifically challenged and shown to be unenforceable,
which Goff had not shown.
On July 7, 2021, the trial court signed an order finding that “the arbitration
provision results in the overall costs of arbitration to be excessive compared to
litigation in this Court.” The trial court also found that “portions of the arbitration
clause contained in the parties’ purchase agreement contain[] provisions that are
vague, ambiguous, misleading, internally inconsistent and in conflict with each
other, purport[] to invalidate or waive substantive rights and remedies authorized by
statute and [are] unconscionable.” The trial court then determined those provisions
were “unenforceable” and “severed” them from the arbitration agreement by striking
through them as follows:
11) Dispute Resolution—Arbitration:
[. . . .]
(a) This arbitration agreement shall be deemed to be a selfexecuting arbitration agreement. Any dispute concerning the
interpretation or the enforceability of this arbitration agreement,
including without limitation, its revocability or voidability for
any cause, any challenges to the enforcement or the validity of
the agreement, or this arbitration agreement, or the scope of
arbitrable issues under this arbitration agreement, and any
defense relating to the enforcement of this arbitration agreement,
12
including without limitation, waiver, estoppel, or laches, shall be
decided by an arbitrator in accordance with this arbitration
agreement and not a court of law.
b. In the event that a dispute arises between the parties, such
dispute shall be resolved by and pursuant to the arbitration rules
and procedures of [the] American Arbitration Association in
effect at the time the request for arbitration is submitted. In the
event the American Arbitration Association is for any reason
unwilling or unable to serve as the arbitration service, then the
parties shall select another reputable arbitration service. If the
parties are unable to agree on an alternative service, then either
party may petition any court of competent jurisdiction in the
county in which the property is located to appoint such an
alternative service, which shall be binding on the parties. The
rules and procedures of such alternative service in effect at the
time the request for arbitration is submitted shall be followed.
[. . . .]
(e) In the event any dispute arises under the terms of the
Purchase agreement or in the event of the bringing of any
arbitration action by a party hereto against another party
hereunder by reason of any breach of any of the covenants,
agreements or provisions on the part of the other party arising
out of this Purchase agreement, then all fees and costs shall be
borne separately between the parties, including but not limited
to all attorneys’ fees and expert witness costs resulting from the
Dispute. The foregoing provision does not modify any provision
of any contract between Seller and any third-party requiring
indemnification or establishing a different allocation of fees and
costs between Seller and such third party. In the event Buyer is
an entity and not a natural person and Seller is the prevailing
party the individual signing this Purchase agreement on behalf of
such entity shall also be personally liable for Seller’s fees and
costs as aforesaid notwithstanding any indication that such
individual is signing in a corporate capacity. The provisions of
13
this paragraph shall survive Closing or termination of this
Purchase agreement.
[. . . .]
(h) To the extent that any state or local law, ordinance,
regulation, or judicial rule is inconsistent with any provision of
the rules of the arbitration service under which the arbitration
proceeding shall be conducted, the latter rules shall govern the
conduct of the proceeding.
(Italics added to highlight specific language severed by trial court.) The trial court
then ordered the parties to arbitrate with an arbitrator “to be agreed upon by the
parties.”
In sum, the trial court’s July 7 order (1) severed and modified the operative
language of the delegation provision, giving the trial court, rather than the arbitrator,
the right to determine questions of arbitrability, including enforceability;
(2) reflected that the trial court determined issues of substantive arbitrability by
striking certain provisions, such as subparagraphs (e) and (h); (3) eliminated the
contemplated and agreed manner and procedure of how arbitration would proceed—
that is, eliminated arbitration with the AAA pursuant to AAA rules and procedures,
and (4) granted Goff’s request to order arbitration of the merits of his claims with an
arbitrator other than the AAA.
Appellants now appeal the July 7 order.
14
Motion to Compel Arbitration
In one issue, Appellants contend that the trial court erred when it failed to
order arbitration pursuant to the terms of the arbitration agreement. More precisely,
Appellants assert that the trial court erred when it “struck the clause that delegates
questions of contract interpretation and enforceability to the arbitrator and proceeded
to find provisions of the arbitration agreement to be ‘vague, ambiguous, misleading,
internally inconsistent, and in conflict with each other.’”
Before we address this issue, we note that, in Taylor Morrison of Texas, Inc.
v. Skufca, Appellants (Taylor Morrison and Taylor Woodrow) challenged a nearly
identical order involving an identical arbitration agreement. No. 01-20-00638-CV,
— S.W.3d —, 2021 WL 6138979 (Tex. App.—Houston [1st Dist.] Dec. 30, 2021,
no pet. h.). The appellees in Skufca were also Mar Bella homeowners, who had sued
Appellants because of mold problems in their home. Id. at *1.
There, Appellants moved to compel arbitration of gateway issues of
arbitrability under the same delegation provision. Id. at *3. In the trial court, the
parties raised the same arguments as Goff made in this case. Id. at *4–6. Like here,
the trial court ruled in favor of the homeowners. See id. at *6–7. And, like here, the
trial court’s order struck and severed the same provisions from the arbitration
agreement, including the same language of the delegation provision. Id. at *7. While
here the trial court ordered the parties to agree on an arbitrator, in Skufca, the trial
15
court selected the arbitrator. But, like here, the trial court struck the provision
requiring arbitration with the AAA under AAA rules and procedures. Id. On appeal,
the parties presented essentially the same substantive arguments that they present
here. See id. at *11–17.
We held that, when it severed the language of the delegation provision,
severed the other challenged provisions, and ordered arbitration with an arbitrator it
selected, the trial court abused its discretion by effectively denying Appellants’
motion to compel arbitration of gateway issues of arbitrability. Id. at *17. We
reversed the order and remanded to the trial court for the court to sign an order
compelling the parties to arbitrate pursuant to the delegation clause and staying the
proceedings. Id.
We decide this interlocutory appeal in accordance with Skufca.
A. Jurisdiction
We note that we have jurisdiction over this interlocutory appeal. The FAA
applies to the arbitration agreement because the parties expressly agreed to arbitrate
under the FAA. See In re Rubiola, 334 S.W.3d 220, 223 (Tex. 2011). Civil Practice
and Remedies Code section 51.016, which authorizes appeals in matters subject to
the FAA, provides that a party may appeal an interlocutory order “under the same
circumstances that an appeal from a federal district court’s order or decision would
be permitted” by the FAA. TEX. CIV. PRAC. & REM.CODE § 51.016. Under the FAA,
16
a party may immediately appeal an order denying a motion to compel arbitration.
See 9 U.S.C. § 16(a)(1)(B).
In Skufca, we analyzed whether we had jurisdiction over the order that severed
the same provisions severed here in the July 7 order. See id. 2021 WL 6138979, at
*10. We concluded that, “[w]hen viewed in the context of the record, the order
served to deny Appellants their contractual right pursuant to the delegation provision
to arbitrate threshold issues of arbitrability, including enforceability.” Id. We held
that we had jurisdiction because the order functioned to deny Appellants’ motion to
compel arbitration. Id. For the same reason, we hold that we have interlocutory
appellate jurisdiction over the July 7 order in this case. See id.
“Even if we do not have jurisdiction, mandamus relief remains potentially
available to Appellants because ‘mandamus is proper to correct a clear abuse of
discretion when there is no adequate remedy by appeal, as when a party is
erroneously denied its contracted-for arbitration rights under the FAA’”
4
Id. at *11
(quoting CMH Homes v. Perez, 340 S.W.3d 444, 452 (Tex. 2011)). For the reasons
4
In their briefing, Appellants requested that we consider their appellate brief as a
petition for mandamus, if necessary. See CMH Homes v. Perez, 340 S.W.3d 444,
447–52, 454 (Tex. 2011) (holding court of appeals correctly determined it lacked
jurisdiction to hear interlocutory appeal from trial court’s order appointing
arbitrator, but remanding case back to court of appeals to consider mandamus relief
that was alternatively requested).
17
discussed below, our resolution of the issues would be the same whether determined
in an appeal or in an original proceeding seeking a writ of mandamus.
5 See id.
B. Standard of Review
“We review a trial court’s order denying a motion to compel arbitration for
abuse of discretion.” Henry v. Cash Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018). A
trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or
acts without reference to any guiding rules or principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). “We defer to the trial court’s
factual determinations if they are supported by evidence but review its legal
determinations de novo.” Henry, 551 S.W.3d at 115. A trial court has no discretion
in determining what the law is, which law governs, or how to apply the law.
Okorafor v. Uncle Sam & Assocs., Inc., 295 S.W.3d 27, 38 (Tex. App.—Houston
[1st Dist.] 2009, pet. denied).
C. Legal Principles
Federal law requires the enforcement of valid agreements to arbitrate. RSL
Funding, LLC v. Newsome, 569 S.W.3d 116, 121 (Tex. 2018). “Section 2 of the FAA
5 A party is entitled to mandamus relief to correct a clear abuse of discretion for which
the remedy by appeal is inadequate. Walker v. Packer, 827 S.W.2d 833, 839. 842
(Tex. 1992). A trial court abuses its discretion regarding factual issues if it could
reasonably have reached only one decision and failed to do so. Id. at 840. However,
a trial court has no discretion regarding questions of law. Id. Thus, “a clear failure
by the trial court to analyze or apply the law correctly will constitute an abuse of
discretion.” Id.
18
states arbitration agreements ‘shall be valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the revocation of any contract.’” In re
Olshan Found. Repair Co., LLC, 328 S.W.3d 883, 892 (Tex. 2010) (orig.
proceeding) (quoting 9 U.S.C. § 2). “The FAA reflects the fundamental principle
that arbitration is a matter of contract.” Wegner v. Apache Corp., 627 S.W.3d 277,
283 (Tex. 2021) (quoting Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 67 (2010)).
Arbitration agreements are on equal footing with other contracts and must be
enforced according to their terms. Id.
When, as here, an arbitration agreement is contained within another contract,
the arbitration agreement is severable from the contract. See Buckeye Check
Cashing, Inc. v. Cardegna, 546 U.S. 440, 445 (2005) (holding that “as a matter of
substantive federal arbitration law, an arbitration provision is severable from the
remainder of the contract”); see Prima Paint Corp. v. Flood & Conklin Mfg. Co.,
388 U.S. 395, 403–04 (1967). Because an arbitration agreement is severable,
questions about the validity of the larger contract, in which the arbitration agreement
is embedded, are determined by the arbitrator. See Buckeye Check Cashing, 546 U.S.
at 445–46.
But simply because arbitration agreements are severable “does not mean that
they are unassailable.” Rent-A-Ctr., 561 U.S. at 71. If a party challenges the validity
of an arbitration agreement—rather than challenging the validity of the larger
19
contract—then the trial court must consider the challenge to the arbitration
agreement before it orders the parties to arbitration. See id. Under the FAA, courts
presume that parties to an arbitration agreement intend that courts rather than
arbitrators decide issues regarding the validity, scope, and enforceability of the
arbitration agreement. See Jody James Farms, JV v. Altman Grp., Inc., 547 S.W.3d
624, 631–33 (Tex. 2018) (citing First Options of Chi., Inc. v. Kaplan, 514 U.S. 938,
944 (1995)). However, because parties have the right to contract as they see fit, they
may delegate to the arbitrator gateway questions of arbitrability, such as the validity
or enforceability of an arbitration agreement. See Rent-A-Ctr., 561 U.S. at 69–70;
RSL Funding, 569 S.W.3d at 121; see also Henry Schein, Inc. v. Archer & White
Sales, Inc., — US —, 139 S. Ct. 524, 527 (2019) (“The [FAA] allows parties to
agree by contract that an arbitrator, rather than a court, will resolve threshold
arbitrability questions as well as underlying merits disputes.”).
The U.S. Supreme Court has explained that an “agreement to arbitrate a
gateway issue is simply an additional, antecedent agreement the party seeking
arbitration asks the federal court to enforce, and the FAA operates on this additional
arbitration agreement just as it does on any other.” Rent-A-Ctr., 561 U.S. at 70. In
other words, “[a] delegation provision is itself a separate and severable arbitration
20
agreement.”
6 Berry Y&V Fabricators, LLC v. Bambace, 604 S.W.3d 482, 487 (Tex.
App.—Houston [14th Dist.] 2020, no pet.) (citing Rent-A-Ctr., 561 U.S. at 72). Thus,
a delegation provision is severable from the remainder of the arbitration agreement,
and a party’s challenge to the arbitration agreement, or even to the larger contract as
a whole, does not prevent a court from enforcing the delegation provision. See RentA-Ctr., 561 U.S. at 70.
If there is a delegation provision, “the court must then compel arbitration so
the arbitrator may decide gateway issues the parties have agreed to arbitrate.” RSL
Funding, 569 S.W.3d at 121. “When faced with [a delegation clause], courts have
no discretion but to compel arbitration unless the clause’s validity is challenged on
legal or public policy grounds.” Id.; see Rent-A-Ctr., 561 U.S. at 72 (holding that,
unless party opposing arbitration challenges delegation provision specifically, courts
must treat it as valid and enforce it, leaving any challenge to validity of entire
arbitration agreement for arbitrator); Darling Homes of Tex., LLC v. Khoury, No.
01-20-00395-CV, 2021 WL 1918772, at *8 (Tex. App.—Houston [1st Dist.] May
13, 2021, no pet.) (mem. op.) (“Because there is a valid agreement to arbitrate that
delegates arbitrability to the arbitrator, the trial court should have compelled
6 As one federal circuit court explained, “Think of a delegation provision as a miniarbitration agreement within a broader arbitration agreement within a broader
contract, ‘something akin to Russian nesting dolls.’” MZM Constr. Co. v. N.J. Bldg.
Laborers Statewide Benefit Funds, 974 F.3d 386, 402 (3d Cir. 2020) (quoting RentA-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 85 (2010) (Stevens, J., dissenting)).
21
arbitration and allowed the arbitrator to decide the questions relating to
unconscionability of the . . . arbitration agreement.”); Berry Y&V Fabricators, 604
S.W.3d at 487 (recognizing that when agreement “delegates to the arbitrator
questions of validity or enforceability of that agreement, a court may not intervene
in evaluating those questions unless the party opposing arbitration challenges the
delegation provision specifically on legal or public policy grounds”).
D. Analysis
In their motion to compel, Appellants sought to enforce the delegation
provision, which was an antecedent agreement to arbitrate threshold issues
concerning the arbitration agreement, including enforceability and defenses to
enforceability like unconscionability. See Rent-A-Ctr., 561 U.S. at 70; Skufca, 2021
WL 6138979, at *11. Goff responded that the arbitration agreement was
unconscionable because (1) the delegation provision improperly required the
arbitrator to determine gateway issues, like enforceability, rather than the trial court;
(2) subparagraph (b) of the agreement required arbitration with the AAA, which
Goff asserted was “prohibitively expensive”; and (3) subparagraph (e), which
provided that “all fees and costs shall be borne separately between the parties,” and
subparagraph (h), which provided that, “[t]o the extent that any state or local law,
ordinance, regulation, or judicial rule is inconsistent with [the AAA rules], the latter
22
rules shall govern the conduct of the proceeding,” operated to deny Goff his statutory
rights and remedies, such as his right to recover attorney’s fees.
Goff also claimed that the arbitration agreement was unconscionable because
the agreement did not “advise” him “of the exorbitant filing fees or arbitration costs.”
On appeal, he amplifies this claim by asserting that he was fraudulently induced to
sign the arbitration agreement to arbitrate by Appellants’ silence regarding the cost
of arbitration and the unavailability of statutory remedies under the arbitration
agreement.
Goff requested the trial court to review the enforceability of the arbitration
agreement and either sever it from the purchase agreement or, pursuant to the
arbitration agreement’s severability clause, sever the complained-of provisions. The
trial court did the latter, severing the offending provisions, including the operative
language of the delegation provision. The trial court found in its order that the
severed provisions were, inter alia, unconscionable and that “the overall costs of
arbitration [were] excessive compared to litigation in [the trial court].”
As discussed, if, as here, there is a delegation provision, “the court must then
compel arbitration so the arbitrator may decide gateway issues the parties have
agreed to arbitrate.” RSL Funding, 569 S.W.3d at 121. “When faced with [a
delegation provision], courts have no discretion but to compel arbitration unless the
clause’s validity is challenged on legal or public policy grounds.” Id.; see Rent-A-
23
Ctr., 561 U.S. at 72; Darling Homes of Tex., 2021 WL 1918772, at *8; Berry Y&V
Fabricators, 604 S.W.3d at 487.
Appellants assert that, under these principles, the trial court had no discretion
to sever the delegation provision’s operative language and concomitantly decide
questions of enforceability regarding the arbitration agreement itself, a decision the
parties had expressly given to the arbitrator. They contend that the trial court abused
its discretion in effectively denying their motion to compel arbitration of gateway
issues pursuant to the delegation provision. Appellants assert, “Enforceability and
interpretation of this arbitration agreement should have been left to the arbitrator
under that agreement’s delegation clause. The trial court lacked authority to decide
these threshold issues.”
Appellants acknowledge that Goff specifically challenged the delegation
provision as being unconscionable, an issue the trial court was permitted to decide.
See RSL Funding, 569 S.W.3d at 121. But they contend that Goff failed to show that
the delegation provision was unconscionable.
Whether relating to arbitration or not, unconscionable contracts are
unenforceable. In re Poly-Am., L.P., 262 S.W.3d 337, 348 (Tex. 2008) (orig.
proceeding). “[T]he theory behind unconscionability in contract law is that courts
should not enforce a transaction so one-sided, with so gross a disparity in the values
exchanged, that no rational contracting party would have entered the contract.”
24
Olshan Found. Repair, 328 S.W.3d at 892. “Generally, a contract is unconscionable
if, given the parties general commercial background and the commercial needs of
the particular trade or case, the clause involved is so one-sided that it is
unconscionable under the circumstances existing when the parties made the
contract.” Id. (internal quotations marks omitted).
Arbitration agreements may be either substantively or procedurally
unconscionable, or both. See In re Halliburton Co., 80 S.W.3d 566, 571 (Tex. 2002)
(orig. proceeding). Substantive unconscionability refers to the fairness of the
arbitration provision itself, whereas procedural unconscionability refers to the
circumstances surrounding adoption of the arbitration provision. In re Palm Harbor
Homes, 195 S.W.3d 672, 677 (Tex. 2006) (orig. proceeding). Because an arbitration
agreement functions as a forum-selection clause, see Poly-Am., 262 S.W.3d at 352,
the “‘crucial inquiry’ in determining unconscionability [is] ‘whether the arbitral
forum in a particular case is an adequate and accessible substitute to litigation, a
forum where the litigant can effectively vindicate his or her rights.’” Venture Cotton
Co-op. v. Freeman, 435 S.W.3d 222, 231 (Tex. 2014) (quoting Olshan Found.
Repair, 328 S.W.3d at 894). As the party asserting the defense, Goff had the burden
to prove the delegation provision was unconscionable. Royston, Rayzor, Vickery, &
Williams, LLP v. Lopez, 467 S.W.3d 494, 500 (Tex. 2015).
25
Goff raised the issue of the delegation provision’s unconscionability in his
response to the motion to compel, asserting:
Despite statutory and judicial authority for the proposition that Courts
decide gateway matters such as the validity and enforceability of
arbitration clauses, [Appellants have] written into [their] contracts a
provision which attempts to take that authority away. This is an
example of the substantive unconscionability of the contract’s
arbitration clause.
Goff claimed that “[u]nder the FAA, absent unmistakable evidence that the
parties intended the contrary, it is the courts rather than arbitrators that must decide
‘gateway matters’ such as whether a valid arbitration agreement exists.” However,
as discussed, both the U.S. Supreme Court and the Supreme Court of Texas have
recognized the validity of delegation provisions.
In Rent-A-Center, the Supreme Court explained, “The delegation provision is
an agreement to arbitrate threshold issues concerning the arbitration agreement. We
have recognized that parties can agree to arbitrate ‘gateway’ questions of
‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether their
agreement covers a particular controversy.” 561 U.S. at 68–69.
More recently, in Henry Schein, the Supreme Court reiterated, “Under the
[FAA] and this Court’s cases, the question of who decides arbitrability is itself a
question of contract. The [FAA] allows parties to agree by contract that an arbitrator,
rather than a court, will resolve threshold arbitrability questions as well as
underlying merits disputes.” 139 S. Ct. at 527. In Henry Schein, the party opposing
26
arbitration argued, as Goff does here, “that a court must always resolve questions of
arbitrability and that an arbitrator never may do so.” Id. at 530. To that argument,
the Supreme Court responded, “But that ship has sailed. This Court has consistently
held that parties may delegate threshold arbitrability questions to the arbitrator, so
long as the parties’ agreement does so by ‘clear and unmistakable’ evidence.”
7
Id.
And “[w]hen the parties’ contract delegates the arbitrability question to an arbitrator,
the courts must respect the parties’ decision as embodied in the contract.” Id. at 531.
The Supreme Court of Texas in RSL Funding also recognized that parties may
agree to delegate questions of arbitrability to the arbitrator: “But as parties have a
right to contract as they see fit, they may agree to arbitral delegation clauses that
send gateway issues such as arbitrability to the arbitrator.” 569 S.W.3d at 121 (citing
Rent-A-Ctr., 561 U.S. at 68–70). There, the supreme court held that the court of
appeals had erred by refusing to send an issue of arbitrability to the arbitrator when
the parties’ arbitration agreement contained a delegation provision. Id. at 123.
7 As mentioned, the delegation provision provides that “[a]ny dispute concerning the
interpretation or the enforceability of this arbitration agreement, including without
limitation . . . any defense relating to the enforcement of this arbitration agreement
. . . shall be decided by an arbitrator in accordance with this arbitration agreement
and not a court of law.” Goff did not dispute in the trial court nor does he dispute
on appeal that the delegation provision is clear and unmistakable evidence that the
parties agreed that threshold issues were delegated to the arbitrator. To the contrary,
by arguing that the delegation provision is unconscionable because it delegates the
right to decide threshold issues to the arbitrator, he implicitly acknowledges that it
is clear and unmistakable in that function.
27
In short, both the U.S. Supreme Court and the Supreme Court of Texas have
made clear that parties may contract to delegate questions of arbitrability to the
arbitrator. Thus, Goff failed to show that the delegation provision was
unconscionable because it delegated the authority to decide the arbitration
agreement’s validity and enforceability to the arbitrator. See Skufca, 2021 WL
6138979, at *14; see also Taylor Morrison of Tex., Inc. v. Klein, Nos. 14-20-00520-
CV & 14-20-00532-CV, 2021 WL 5459222, at *5 (Tex. App.—Houston [14th Dist.]
Nov. 23, 2021, no pet.) (mem. op.) (rejecting—in case involving same delegation
provision—homeowners’ assertion that arbitrators are not qualified to determine
threshold issues of arbitrability).
Goff’s arguments in the trial court can also be fairly interpreted to challenge
the delegation provision as being unconscionable based on the cost of arbitration.
He asserted that the cost of arbitrating their claims with the AAA was “prohibitively
expensive” as compared to litigating their claims in the trial court or utilizing an
alternative arbitration service. Goff tied this assertion specifically to the delegation
provision:
[A] Plaintiff can be forced to sign th[e] arbitration clause in order to
purchase [a] home, then if there is a dispute, should bypass [the trial
court],” despite clear statutory requirement for [the court] to determine
unconscionability, immediately file for arbitration with the AAA and
pay $14,700.00 to have an arbitrator determine whether or not the fee
to use the AAA is unconscionable, only then to have to split the costs
of the arbitrator and never have the ability to recoup those costs[.]
28
(Footnote omitted.) In other words, Goff complained that he should not be required
to pay what he termed “exorbitant costs” to arbitrate threshold issues of
enforceability under the delegation provision.
Excessive arbitration costs may render contractual arbitration unenforceable
if the costs prevent a litigant from effectively vindicating his or her rights in the
arbitral forum. Olshan Found. Repair, 328 S.W.3d at 893. A party opposing
arbitration based on the defense of unconscionability must supply “specific proof in
the particular case of the arbitral forum’s inadequacy.” Venture Cotton Co-op., 435
S.W.3d at 232. When a party seeks to invalidate an arbitration agreement on the
ground that arbitration would be prohibitively expensive, that party bears the burden
of showing the likelihood of incurring such costs. Green Tree Fin. Corp.-Ala. v.
Randolph, 531 U.S. 79, 81 (2000). The 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.” Poly–Am., 262 S.W.3d at 356.
To determine whether the arbitral forum is an adequate and accessible
substitute to litigation, courts consider the following factors: (1) the claimant’s
ability to pay the arbitration fees and costs, (2) the actual cost of arbitration compared
to the amount of damages, and (3) the expected cost differential between arbitration
and litigation in court and whether that cost differential is so substantial as to deter
the bringing of claims. Olshan Found. Repair, 328 S.W.3d at 893–95. “[A]
29
comparison of the total costs of the two forums is the most important factor in
determining whether the arbitral forum is an adequate and accessible substitute to
litigation.” Id. at 894–95.
Speculation about possible harm is insufficient to establish unconscionability.
Venture Cotton Co-op., 435 S.W.3d at 232. Rather, the party opposing arbitration
must offer evidence such as invoices, expert testimony, reliable cost estimates, and
affidavits to prove the likelihood of incurring expected costs. Olshan Found. Repair,
328 S.W.3d at 895.
Goff supported his assertion that arbitration was prohibitively expensive by
offering the AAA’s “Construction Industry Arbitration Rules and Mediation
Procedures,” which included the fee schedule for filing arbitration. The schedule
showed that, for claims over $1 million, such as the Goff’s claims, the filing fee
totaled $14,700. Goff also offered the affidavits of his attorneys, who represented
Mar Bella homeowners in other suits filed against Appellants. One of the attorneys
testified about two of the other suits in which arbitration with Appellants had already
resolved the merits of the plaintiffs’ claims, resulting in arbitration awards to the
plaintiffs for damages, attorney’s fees, and expert’s fees. Goff relied on the
attorneys’ testimony about the cost of arbitrating the other suits as a basis to argue
that arbitrating the merits of Goff’s claims would be prohibitively expensive.
30
At this point, we turn to an argument raised by Appellants relating to the cost
of arbitration. In the trial court, Appellants countered Goff’ assertion that he would
be required to pay $14,700 in filing fees. They offered the fee schedule for “NonMonetary, Undetermined, or Specific Performance Claims” contained in the AAA’s
“Home Construction Industry Arbitration Rules and Mediation Procedures.”
Appellants asserted that was the applicable fee schedule for arbitrating threshold
arbitrability issues. Under that schedule, Appellants pointed out that Goff’s filing
fees would total only $2,300 because arbitrating arbitrability would involve
arbitrating a non-monetary claim.
It is unclear which fee—$2,300 or $14,700—would be required by the AAA
to arbitrate only threshold issues of arbitrability. However, regardless of which fee
applies, Appellants’ position that the relevant consideration at this juncture is the
cost of arbitrating arbitrability and enforceability pursuant to the delegation
provision and not the cost of arbitrating the merits of Goff’s claims finds support in
the Supreme Court’s opinion in Rent-A-Center. There, Rent-A-Center sought to
enforce an arbitration agreement against its former employee, Jackson, who had sued
Rent-A-Center for employment discrimination. 561 U.S. at 65. Jackson opposed
arbitration, asserting that the arbitration agreement was unenforceable because it was
unconscionable. Id. at 66. “Rent-A-Center responded that Jackson’s
unconscionability claim was not properly before the court because Jackson had
31
expressly agreed that the arbitrator would have exclusive authority to resolve any
dispute about the enforceability of the Agreement.” Id.
The Supreme Court ultimately ruled in favor of Rent-A-Center because
Jackson had challenged the entire arbitration agreement as being unconscionable but
had not specifically challenged the delegation provision as unconscionable. Id. at
73–74. Jackson asserted that the arbitration agreement was substantively
unconscionable because it limited discovery and required the parties to split the
arbitration fees. Id. at 74. The Supreme Court explained what Jackson would have
needed to have shown in order to have established that the delegation provision was
rendered unconscionable based on “common procedures”:
To make such a claim based on the discovery procedures, Jackson
would have had to argue that the limitation upon the number of
depositions causes the arbitration of his claim that the Agreement is
unenforceable to be unconscionable. That would be, of course, a much
more difficult argument to sustain than the argument that the same
limitation renders arbitration of his factbound employmentdiscrimination claim unconscionable. Likewise, the unfairness of the
fee-splitting arrangement may be more difficult to establish for the
arbitration of enforceability than for arbitration of more complex and
fact-related aspects of the alleged employment discrimination.
Id. Applying the Supreme Court’s reasoning here, to show that the cost of arbitration
rendered the delegation provision unconscionable, Goff needed to demonstrate the
unfairness of the cost of arbitrating the threshold issues of arbitrability and
enforceability under the delegation provision, not the cost of arbitrating the merits
of his claims to a final award under the arbitration agreement. See id.
32
In challenging the delegation provision, Goff offered evidence regarding the
costs of conducting the entire arbitration of his merits-based claims under the
arbitration agreement. He did not offer evidence showing the cost of arbitrating only
threshold issues under the delegation provision. And he offered no evidence of his
ability to pay other than his testimony that he would be “unfairly burdened” and that
arbitration costs “could force us to drop our claim.” Thus, we conclude that Goff did
not meet his burden to show that the cost of arbitrating threshold issues rendered the
delegation provision substantively unconscionable. See id.; Skufca, 2021 WL
6138979, at *16 (holding that homeowners had failed to show delegation provision
was substantively unconscionable because they had not offered evidence to show
cost of arbitrating questions of arbitrability under delegation provision); Darling
Homes of Tex., 2021 WL 1918772, at *10 (holding that homeowner opposing
arbitration did not show arbitration agreement was substantively unconscionable due
to excessive arbitration costs where homeowner offered evidence of amount of
arbitral filing fee but failed to offer evidence of total costs of arbitration (or
litigation) and record contained no evidence about the individual homeowners’
ability to pay the arbitration fees and costs); see also Madgrigal v. AT&T Wireless
Servs., Inc., No. 1:09-cv-0033-OWW-MJS, 2010 WL 5343299, at *7 (E.D. Cal. Dec.
20, 2010) (rejecting plaintiff’s claim that fee-splitting provision in arbitration
agreement rendered delegation provision unconscionable because plaintiff offered
33
only evidence that “the total cost of conducting the entire arbitration, including
resolution of the substantive merits of the parties’ disputes, could exceed
$60,000.00,” but “[n]othing in the record reveal[ed] the cost of arbitrating Plaintiff’s
claim of unconscionability”).
Because Goff did not successfully challenge the delegation provision, the trial
court improperly severed the language in the provision authorizing the arbitrator to
decide threshold issues. Without a proper severance of the delegation language, the
trial court was not permitted to decide whether the other provisions complained of
by Goff rendered the arbitration agreement unenforceable, requiring the provisions
to be severed. See Rent-A-Ctr., 561 U.S. at 72; RSL Funding, 569 S.W.3d at 121.
Similarly, the trial court had no discretion to determine whether the arbitration
agreement was procedurally unconscionable on the basis that Goff had been
fraudulently induced to sign it. Instead, the trial court was required to compel
arbitration as requested by Appellants to permit the arbitrator to decide gateway
issues of arbitrability, including enforceability and defenses to enforceability such
as substantive and procedural unconscionability.8 See Skufca, 2021 WL 6138979, at
8 On appeal, Goff suggests that the delegation provision is also unenforceable because
it is procedurally unconscionable or was fraudulently induced. He cites federal cases
in which courts have determined that, “[i]n specifically challenging a delegation
clause, a party may rely on the same arguments that it employs to contest the
enforceability of other arbitration provisions.” Gibbs v. Haynes Invs., LLC, 967 F.3d
332, 338 (4th Cir. 2020) (quoting MacDonald v. CashCall, Inc., 883 F.3d 220, 226–
27 (3d Cir. 2018)); see Williams v. Medley Opportunity Fund II, LP, 965 F.3d 229,
34
*17 (citing RSL Funding, 569 S.W.3d at 121); Darling Homes of Tex., 2021 WL
1918772, at *4; Klein, 2021 WL 5459222, at *5.
238 (3d Cir. 2020). But, in those cases, unlike here, the plaintiff raised the challenge
in the district court not only to the arbitration agreement as a whole but also
specifically raised the same challenge to the delegation provision. See Williams, 965
F.3d at 237 (“Plaintiffs contested the delegation clause in their opposition to the
motion to compel, and they challenged the clause based upon arguments they made
concerning the enforceability of the entire arbitration agreement.”); Gibbs, 967 F.3d
at 338 (“[T]he borrowers argued that the ‘delegation clause[s] [are] unenforceable
for the same reason as the underlying arbitration agreement—the . . . wholesale
waiver of the application of federal and state law[.]’”); MacDonald, 883 F.3d at 227
(“MacDonald specifically challenged the delegation clause.”). Here, Goff did not
specifically challenge the delegation provision in the trial court by arguing that it
was procedurally unconscionable. Rather, he raised that argument only with respect
to the arbitration agreement as a whole. See Rent-A-Ctr., 561 U.S. at 72 (“[U]nless
[the plaintiff] challenged the delegation provision specifically,” the Court must treat
it as valid and leave “any challenge to the validity of the Agreement as a whole for
the arbitrator”).

Outcome: Because the parties’ arbitration agreement contained an enforceable
delegation provision, we hold that the trial court abused its discretion by effectively denying Appellants’ motion to compel arbitration of threshold issues of arbitrability
pursuant to that provision, and we sustain Appellants’ sole issue.9 Accordingly, we
reverse the trial court’s July 7 order and remand to the trial court for the court to
order the parties to arbitration and to stay the proceedings.

Plaintiff's Experts:

Defendant's Experts:

Comments: