Court of Appeals of Texas, Houston (14th Dist.).
BFS GROUP LLC and Builders FirstSource, Inc., Appellants
v.
Jose Gustavo DE LEON, Individually, and as Personal Representative of the Estate of Gustavo De Leon, Deceased, and Elizabeth Martinez Silva, Individually, Appellees
NO. 14-24-00548-CV
|
Opinion filed August 19, 2025
On Appeal from the 157th District Court, Harris County, Texas, Trial Court Cause No. 2024-08635
Attorneys & Firms
Jane Haas, Jessica Z. Barger, Houston, William David Toney II, Kyle Steingreaber, for Appellants.
Joshua Lee, Laura Gomez Duarte, Scott P. Armstrong, for Appellees.
Panel consists of Justices Wise, Wilson, and Antú.
OPINION
Randy Wilson, Justice
*1 Two affiliated companies appeal the trial court’s interlocutory order denying their motion to compel arbitration of wrongful-death and survival claims asserted by a husband and his wife based on alleged injury to and death of their unborn son that was allegedly caused by the negligence of the wife’s employer. Concluding that the trial court erred in denying the motion, we reverse and remand.
I. Factual and Procedural Background
In November 2020, Builders FirstSource – South Texas, L.P. (“Builders South Texas”) hired appellee/plaintiff Elizabeth Martinez Silva (“Martinez”) to work in its window manufacturing facility on Brittmoore Road in Houston. At this facility Martinez worked in various roles related to the manufacture of windows and other building materials. At the start of her employment Martinez accepted and agreed to comply with the arbitration requirements of a mandatory company policy in which Martinez agreed that certain claims or disputes must be submitted to final and binding arbitration (the “Arbitration Agreement”).1 Under the Arbitration Agreement Martinez must arbitrate “any legal or equitable claim by or with respect to [Martinez] for any form of physical or psychological damage, harm or death which relates to an accident, occupational disease, or cumulative trauma, including … claims of negligence or gross negligence.”
The Arbitration Agreement provides that it applies to any claims that may be brought by Martinez’s spouse and children, including any survival or wrongful-death claims. Under the Arbitration Agreement Martinez also agrees to arbitrate whether a claim is covered by the Arbitration Agreement. Any arbitration under the Arbitration Agreement will be administered by the American Arbitration Association (“AAA”) under its then-current Employment Arbitration Rules and Mediation Procedures (“AAA Employment Rules”). The Arbitration Agreement applies to claims brought against “owners” and “successors” of Martinez’s Employer. Builders – South Texas was a non-subscriber to the Texas Workers’ Compensation Act, and the Arbitration Agreement was included in the Summary Plan Description for the Builders FirstSource Injury Benefit Plan (“Plan Description”).
In December 2021, Builders – South Texas, a wholly-owned subsidiary of appellant/defendant Builders FirstSource, Inc. (“FirstSource”), merged with ProBuild Company LLC, another wholly owned subsidiary of FirstSource. ProBuild then renamed itself as BFS Group LLC (“BFS”), an appellant/defendant in this case. Martinez stayed on with BFS after the merger, continuing her work in the Houston window-manufacturing facility. She became pregnant with Gustavo De Leon in the fall of 2023 and continued working.
*2 Jose Gustavo De Leon (“Jose”) is Martinez’s husband and Gustavo’s father. Martinez and Jose sued BFS and FirstSource (collectively the “BFS Parties”) after Martinez miscarried Gustavo in January 2024. In their live pleading appellees/plaintiffs Jose Gustavo De Leon, Individually, and as Personal Representative of the Estate of Gustavo De Leon, Deceased, and Elizabeth Martinez Silva, Individually (collectively the “De Leon Parties”) assert wrongful-death and survival claims. The De Leon Parties allege that on September 21, 2023, Martinez learned that she was pregnant with her and Jose’s first child, a boy whom they named Gustavo De Leon. The De Leon Parties assert that at all material times Martinez was an employee of the BFS Parties at their warehouse located on Brittmoore Road in Houston, Texas and that they required Martinez to perform laborious tasks as part of her duties.
The De Leon Parties contend that on or about November 17, 2023, Martinez provided the BFS Parties with a doctor’s note restricting Martinez’s ability to carry, lift, push, or pull items weighing over 25 pounds for the duration of the pregnancy or until May 2024. On January 11, 2024, when Martinez was approximately twenty weeks pregnant, Martinez was working as the line leader on the assembly line at the Brittmoore warehouse. The De Leon Parties allege that despite Martinez’s doctor’s work restrictions, the BFS Parties forced her to repeatedly lift, carry, push, or pull items weighing over 25 pounds while at work and that shortly thereafter, Martinez began experiencing pulsing pain in her womb. According to the De Leon Parties in the subsequent hours, Martinez’s pain increased and was accompanied by spotting and contractions. They contend that Gustavo was not viable due to a labor-induced miscarriage and that Gustavo was pronounced dead the morning of January 12, 2024. The De Leon Parties allege that Gustavo’s death was due to the BFS Parties’ continuous and repeated disregard for Martinez’s doctor’s work restrictions.
The De Leon Parties assert that they are bringing suit on behalf of Gustavo, who would have been entitled to bring an action for the injury had he been born alive and that they sue for damages sustained as a result of Gustavo’s failure to be born alive. They allege that the BFS Parties’ negligence and gross negligence resulted in Gustavo’s death. They seek to recover actual and exemplary damages against the BFS Parties.
The BFS Parties filed a motion asking the trial court to compel arbitration under the FAA and to stay the case under section 3 of the FAA pending arbitration (“Motion”). The De Leon Parties opposed the Motion, and the trial court denied it. The BFS Parties timely perfected this interlocutory appeal from the trial court’s order.
II. Issues and Analysis
A. Did the trial court err in denying the motion to compel?
The BFS Parties assert in their sole issue that the trial court abused its discretion in denying the Motion. In support of this issue the BFS Parties assert that (1) Martinez is not a transportation worker exempted from application of the FAA under section 1, and the FAA applies to the Arbitration Agreement; (2) the evidence proves as a matter of law the existence of an arbitration agreement between Martinez and Builders South Texas and that the parties clearly and unmistakably agreed to delegate to the arbitrator the determination of disputes regarding the scope of the arbitration agreement; (3) Martinez agreed that she and her children would arbitrate “any legal or equitable claim … with respect to” Martinez “for any … death which relates to an accident … or cumulative trauma”; (4) under the text of the Arbitration Agreement nonsignatories BFS and FirstSource — the respective “successor[ ]” and “owner” of Builders South Texas — may enforce the Arbitration Agreement; (5) Jose’s survival claim on behalf of Gustavo is bound by Martinez’s agreement that her children’s claims with respect to Martinez for any death relating to an accident or cumulative trauma must be arbitrated; (6) Jose’s wrongful-death claim is bound by the Arbitration Agreement because this claim is entirely derivative of Gustavo’s entitlement to bring an action for his injuries; and (7) in the alternative Jose’s wrongful-death claim and his survival claim on behalf of Gustavo must be arbitrated under the Arbitration Agreement based on the doctrine of direct-benefits estoppel.
1. Standard of Review
*3 We review the denial of a motion to compel arbitration for an abuse of discretion, reviewing matters of law de novo, but deferring to any fact findings by the trial court. See Henry v. Cash Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018); In the Estate of Guerrero, 465 S.W.3d 693, 700–01, 705 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (en banc). If a factual finding by the trial court is in dispute, we review the finding under a legal sufficiency standard of review. See id. at 700. In conducting a legal sufficiency review, we credit favorable evidence if a reasonable fact finder could do so, disregard contrary evidence unless a reasonable fact finder could not do so, and determine whether the evidence would enable reasonable and fair-minded people to find the fact at issue. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); In the Estate of Guerrero, 465 S.W.3d at 700. We defer to the trial court’s factual determinations that are supported by legally sufficient evidence. See In the Estate of Guerrero, 465 S.W.3d at 700–01.
2. Applicability of the FAA
The Arbitration Agreement provides that the Employer “is engaged in transactions involving interstate commerce … and [Martinez’s] employment involves such commerce.” The Arbitration Agreement states that except as provided in the agreement, the FAA shall govern the interpretation, enforcement, and all proceedings under the Arbitration Agreement and that to the extent that the FAA is not applicable, Texas common law shall apply. The Arbitration Agreement does not provide that the FAA does not govern the interpretation, enforcement, and all proceedings under the Arbitration Agreement. Under this court’s precedent, this provision constitutes an agreement that the FAA applies to the Arbitration Agreement, and the BFS Parties are not required to establish that the transaction at issue involves or affects interstate commerce. See In re Pham, 314 S.W.3d 520, 526 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding [mand. denied]). In the trial court the De Leon Parties asserted that Martinez is a transportation worker and therefore the Arbitration Agreement is exempt from the FAA under section 1 of the FAA (“Section 1”). See 9 U.S.C. § 1 (providing that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce”) (emphasis added); Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246, 252–53, 144 S.Ct. 905, 218 L.Ed.2d 204 (2024). We presume, without deciding, that even though the parties agreed that the FAA governs the Arbitration Agreement, the FAA does not apply if the De Leon Parties establish that Martinez is a transportation worker exempt from application of the FAA. If Martinez does not fall within the transportation-worker exemption, then the FAA applies.
3. Transportation-Worker Exemption
The De Leon Parties had the burden of proving that Martinez was a transportation worker. See Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91–92, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000); Amazon.com Services, LLC v. De La Victoria, 711 S.W.3d 250, 259 (Tex. App.—Houston [14th Dist.] 2024, no pet.). Even if the parties to the Arbitration Agreement clearly and unmistakably agreed to arbitrate arbitrability issues, the determination of whether Martinez is a transportation worker is an issue for the courts not for the arbitrator. See New Prime, Inc. v. Oliveira, 586 U.S. 105, 108–21, 139 S.Ct. 532, 202 L.Ed.2d 536 (2019).
The transportation-worker exemption covers a worker “who is actively engaged in transportation of goods across borders via the channels of foreign or interstate commerce.” Bissonnette, 601 U.S. at 256, 144 S.Ct. 905 (internal quotations omitted). An exempt worker “need not work in the transportation industry,” but “must at least play a direct and necessary role in the free flow of goods across borders.” Id. (internal quotations omitted). “These requirements ‘undermine[ ] any attempt to give [Section 1] a sweeping, open-ended construction,’ instead limiting [Section 1] to its appropriately ‘narrow’ scope.” Bissonnette, 601 U.S. at 256, 144 S.Ct. 905 (quoting Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 118, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001)). In determining whether a worker is exempt, courts focus on the work performed by the worker, not the industry of the worker’s employer or the work performed by the employer. Id. at 253–54, 144 S.Ct. 905.
a. Evidence as to Transportation-Worker Status
*4 In his declaration Christopher Shore, the Operations Manager at BFS testified that since November 2020 the windows and other materials that Martinez helped build at the Brittmoore Road facility were, at all relevant times, manufactured using vinyl shipped to Texas from Ohio and glass shipped to Texas from other states. In her first declaration Maria Jimenez-Corredor, a Senior Human Resources Manager at BFS and before December 31, 2021, a Human Resources Manager at Builders South Texas, testified that on November 30, 2020, Martinez was hired by Builders South Texas, and she worked for and was paid by that entity through 2021. According to Jimenez-Corredor from January 1, 2022, to May 15, 2024, Martinez was employed by BFS, and she worked for and was paid by that entity. Jimenez-Corredor stated that from November 30, 2020, to her resignation on May 15, 2024, Martinez worked at the Brittmoore facility in various roles related to the manufacture of windows and other building materials that are sold in Texas and in other states.
In a supplemental declaration Jimenez-Corredor testified that as an assembly line worker, Martinez was responsible for the performance of various assembly operations for products like windows. Jimenez-Corredor stated that Martinez’s work location was separate and apart from the Brittmoore facility’s receiving docks, as well as its storage areas for materials. Jimenez-Corredor noted that Martinez did not work in the department responsible for the receipt of materials and that she performed no work at the distribution warehouse from which materials produced at the Brittmoore facility are packaged and shipped to customers. That warehouse is located at a different property from the Brittmoore facility. Jimenez-Corredor testified that at no time during Martinez’s employment was she employed in a role responsible for the receipt, sorting, packing, loading, or transportation of materials received at the Brittmoore facility for use in its manufacturing processes, nor did her role require her to supervise those who were. Jimenez-Corredor stated that BFS knows of no instance when Martinez performed those tasks in the course of her employment.
Jimenez-Corredor asserted that at no time during Martinez’s employment was she employed in a role responsible for the sorting, packing, loading, or transportation of finished products from the Brittmoore facility, nor did her role require her to supervise those who were. Jimenez-Corredor stated that BFS knows of no instance when Martinez performed those tasks in the course of her employment. According to Jimenez-Corredor at no time during Martinez’s employment was she employed in a role responsible for either the delivery of materials to the Brittmoore facility or the delivery of finished products to customers, nor was she employed in a role responsible for communicating with materials suppliers or customers. Jimenez-Corredor stated that BFS knows of no instance when Martinez performed those tasks in the course of her employment.
In their response to the Motion, the De Leon Parties asserted that (1) Martinez was working as an assembly line leader in the vinyl manufacturing department; and (2) Martinez led an assembly line taking vinyl and glass from Ohio and other states and transforming them into completed windows before they were shipping to other states. The De Leon Parties asserted that Martinez worked as a line leader in the manufacturing department, and they attached a document that they said contained Martinez’s job description. This document describes the job of an “Assembler Lead” in the Vinyl Manufacturing department at the “Houston Windows” work location. A person holding this job reports to the production supervisor. This document states that the purpose of this job is “Performs assembly operations to mass-produce products such as windows, doors, trusses, panels, or stairs.” The document lists the following “Essential Duties and Responsibilities” of this job:
• Leads workers in the sorting/staging of windows.
*5 • Keeps team on production schedule.
• Interprets job orders to workers.
• Operates equipment related to these activities and trains less-experienced workers in equipment operation. Ensures equipment is always maintained and running properly.
• Reports work progress to the Supervisor and recommends changes to processes and procedures as appropriate.
• Suggests changes in working conditions and use of equipment to Supervisor to increase efficiency of work crew.
• Resolves work problems within team or department.
• Ensures team is adhering to safety regulations.
b. Analysis
Though this court recently addressed whether a plaintiff fell within the transportation-worker exemption in Section 1, almost all cases addressing this issue were decided by a court whose opinions are not binding on this court. See Energy Transfer LP v. Moock, No. 14-23-00858-CV, ––– S.W.3d ––––, –––– – ––––, 2025 WL 1559841, at *3–10 (Tex. App.—Houston [14th Dist.] Jun. 3, 2025 no pet. h.). The parties have not cited and research has not revealed any cases addressing whether a plaintiff with the same work duties as Martinez fell within the transportation-worker exemption.
The evidence shows that Martinez helped assemble windows and other building materials using vinyl shipped to Texas from Ohio and glass shipped to Texas from other states. Though the windows and other building materials that Martinez assembled were sold in Texas and other states, Martinez’s responsibilities dealt with assembly operations. Martinez never held a role responsible for the receipt, sorting, packing, loading, or transportation of materials received at the Brittmoore facility or of finished products from the Brittmoore facility. Indeed, Martinez’s work location was separate and apart from the facility’s receiving docks and material-storage areas. The undisputed evidence shows that Martinez was engaged in the assembly or manufacture of goods rather than the transportation of goods. See Herrera v. Daikyonishikawa USA, Inc., No 5:24-cv-00904-LSC, 2024 WL 4847361, at *2 (N.D. Ala. Nov. 20, 2024).
In Saxon the United States Supreme Court concluded that Southwest Airlines ramp supervisors, who frequently physically load and unload cargo on and off planes traveling in interstate commerce, belong to a class of workers who play a direct and necessary role in the free flow of goods across borders and who are actively engaged in the transportation of those goods across borders via the channels of foreign or interstate commerce, therefore falling within the transportation-worker exemption. See Southwest Airlines Co. v. Saxon, 596 U.S. 450, 455–59, 142 S.Ct. 1783, 213 L.Ed.2d 27 (2022). Martinez does not belong to a class of workers who physically load and unload goods on and off vehicles traveling in interstate commerce; therefore the Saxon holding is not on point in today’s case. See id.
Considering all of the evidence before the trial court in the light most favorable to the challenged finding and indulging every reasonable inference that would support it, crediting favorable evidence if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not, the evidence would not enable reasonable and fair-minded people to find (1) that Martinez was “actively engaged in the transportation of goods across borders via the channels of foreign or interstate commerce” and played “a direct and necessary role in the free flow of goods across borders” or (2) that Martinez was a member of a class of workers who were “actively engaged in the transportation of goods across borders via the channels of foreign or interstate commerce” and played “a direct and necessary role in the free flow of goods across borders.” Bissonnette, 601 U.S. at 256, 144 S.Ct. 905 (internal quotations omitted); see City of Keller, 168 S.W.3d at 823, 827; Herrera, 2024 WL 4847361, at *2–3; Energy Transfer LP, ––– S.W.3d at –––– – ––––, 2025 WL 1559841, at *3–10. We conclude that the evidence is legally insufficient to support the trial court’s implied finding that Martinez falls within the transportation-worker exemption under Section 1, and that the trial court abused its discretion to the extent it concluded that Martinez falls within this exemption or that the FAA does not apply to the Arbitration Agreement.2 See Bissonnette, 601 U.S. at 256, 144 S.Ct. 905; Herrera, 2024 WL 4847361, at *2–3; Energy Transfer LP, ––– S.W.3d at –––– – ––––, 2025 WL 1559841, at *3–10. The FAA applies to the Arbitration Agreement. See Energy Transfer LP, ––– S.W.3d at ––––, 2025 WL 1559841, at *10.
4. The Law Applicable to Arbitration Agreements Containing Delegation Provisions
*6 Arbitrators are competent to decide any legal or factual dispute the parties agree to arbitrate. RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 121 (Tex. 2018). Generally, a court may consider an arbitration agreement’s terms to decide which issues must be arbitrated. See id. But parties have a right to contract as they see fit, and they may agree to a delegation provision that clearly and unmistakably delegates to the arbitrator, rather than the courts, the determination of disputes over one or more of the arbitrability issues, such as the validity, scope, or enforceability of the arbitration agreement. See TotalEnergies E&P USA, Inc. v. MP Gulf of Mexico, LLC, 667 S.W.3d 694, 702, 718–19 (Tex. 2023); RSL Funding, 569 S.W.3d at 121; Amazon.com Services, LLC, 711 S.W.3d at 261.
Thus, a dispute over whether parties agreed to resolve their controversies through arbitration often encompasses three distinct disagreements: (1) the merits of the underlying controversy, (2) whether the merits must be resolved through arbitration instead of in the courts, and (3) who (a court or the arbitrator) decides the second question. TotalEnergies E&P USA, Inc., 667 S.W.3d at 701. The second question must be answered before the first, and the third must be answered before the second. Id. The BFS Parties assert that the Arbitration Agreement contains two provisions that delegate to the arbitrator the determination of arbitrability disputes: a delegation provision in the Arbitration Agreement’s text and a delegation provision in the AAA Employment Rules that is incorporated by reference into the Arbitration Agreement.
When faced with an agreement that contains an arbitration provision and a delegation provision, courts have no discretion but to compel arbitration unless a party specifically and successfully challenges the validity or enforceability of the delegation provision on legal or public policy grounds. See TotalEnergies E&P USA, Inc., 667 S.W.3d at 718–19; RSL Funding, 569 S.W.3d at 121. In this situation a court should first determine whether an arbitration agreement was formed3 that contains a provision clearly and unmistakably delegating to the arbitrator the determination of one or more arbitrability issues. See TotalEnergies E&P USA, Inc., 667 S.W.3d at 716; RSL Funding, 569 S.W.3d at 121; In re Morgan Stanley & Co., 293 S.W.3d 182, 187–88 (Tex. 2009). If so, the court should determine whether a successful challenge specific to the delegation provision has been asserted. See RSL Funding, 569 S.W.3d at 121. In deciding the contract-formation issue the court may consider defenses to contract formation such as whether a signor had authority to bind a principal or whether the signor had the capacity to assent. See id. at 124; In re Morgan Stanley & Co., 293 S.W.3d at 186. If an arbitration agreement was formed that contains a provision delegating to the arbitrator the determination of the arbitration agreement’s scope, validity and enforceability and if the delegation provision has not been specifically and successfully challenged, then (1) the court must compel arbitration so the arbitrator may decide the arbitrability issues the parties have agreed to arbitrate, as well as the merits of any dispute that the arbitrator determines is arbitrable and (2) the court has no power to determine the scope, validity or enforceability of the arbitration agreement. See TotalEnergies E&P USA, Inc., 667 S.W.3d at 709; RSL Funding, 569 S.W.3d at 121, 124–25; In re Morgan Stanley & Co., 293 S.W.3d at 186–88. The Supreme Court of the United States has held that a court must enforce an agreement to delegate arbitrability issues to the arbitrator even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is “wholly groundless.” See Henry Schein, Inc. v. Archer and White Sales, Inc., 586 U.S. 63, 68, 139 S.Ct. 524, 202 L.Ed.2d 480 (2019); TotalEnergies E&P USA, 667 S.W.3d at 703–04.
5. The Formation of an Arbitration Agreement
*7 We next address the evidence as to whether an arbitration agreement was formed. Under the FAA, ordinary principles of state contract law determine whether an arbitration agreement was formed.4 See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); In re Rubiola, 334 S.W.3d 220, 224 (Tex. 2011).
To form a contract there must be an offer, acceptance of the offer in strict compliance with its terms, a meeting of the minds, and mutual assent to the terms. See Mid-Continent Cas. Co. v. Glob. Enercom. Mgmt., Inc., 323 S.W.3d 151, 157 (Tex. 2010); Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555–56 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Though evidence of mutual assent in written contracts often consists of signatures of the parties and delivery, signature and delivery are not required for contract formation. See Mid-Continent Cas. Co., 323 S.W.3d at 157. The FAA does not require that arbitration agreements be signed, so long as they are written and agreed to by the parties. In re Polymerica, LLC, 296 S.W.3d 74, 76 (Tex. 2009). Unless the parties explicitly require that a party to an arbitration agreement sign the agreement to manifest the party’s assent thereto, a party may manifest its assent to the arbitration agreement by its acts, conduct, or acquiescence in the terms of the agreement, and signing the agreement is not a condition precedent to its enforceability. See Mid-Continent Cas. Co., 323 S.W.3d at 157; GSC Wholesale, LLC v. Young, 654 S.W.3d 558, 563 (Tex. App.—Houston [14th Dist.] 2022, pet. denied).
In construing the Arbitration Agreement, our primary concern is to ascertain and give effect to the intentions of the parties as expressed in the contract. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998); Carter v. Z.B., N.A., 578 S.W.3d 613, 618–19 (Tex. App.—Houston [14th Dist.] 2019, no pet.). To ascertain the parties’ true intentions, we examine the entire agreement in an effort to harmonize and give effect to all provisions of the contract so that none will be rendered meaningless. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex. 1999). Whether an agreement is ambiguous is a question of law for the court. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). An agreement is ambiguous when its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation. Id. But, when a written agreement is worded so that it can be given a certain or definite legal meaning or interpretation, it is unambiguous, and the court construes it as a matter of law. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003).
Under the Arbitration Agreement’s plain text “Employer” includes any of the participating employers listed in Appendix B, one of which is Builders South Texas, and “Employee” includes Martinez. The undisputed evidence shows that Martinez’s employer from November 30, 2020 through December 31, 2021, was Builders South Texas and that Martinez’s employer from January 1, 2022 through May 15, 2024 was BFS. In her first declaration Jimenez-Corredor testified that the Spanish-language version of the Arbitration Agreement was made available to Martinez on or about November 30, 2020. The evidence contains the Spanish-language version of the “Receipt, Safety Pledge and Dispute Resolution Acknowledgement” (“Acknowledgement”) that Martinez signed on November 30, 2020. Jimenez-Corredor testified that the Spanish-language version of the Plan Description is an accurate translation of and substantively identical to the English-language version. Under the unambiguous language of the Acknowledgement, Martinez acknowledged that she had received and read, or had the opportunity to read, the Plan Description and that the Arbitration Agreement is attached as an appendix to the Plan Description. In the Acknowledgement Martinez stated that she understood that by receiving the Plan Description and becoming employed or continuing her employment with Employer at any time on or after December 17, 2016, she was accepting and agreeing to comply with the Arbitration Agreement. The Acknowledgement also states that “[a]ll covered claims brought by [Martinez’s] spouse, children, parents, beneficiaries, [r]epresentatives, executors, administrators, guardians, heirs or assigns are also subject to the [Arbitration Agreement], and any decision of an arbitrator will be final and binding on such persons and the Employer.”5 In the Acknowledgement Martinez stated that she understood that the arbitrator, and not a judge or jury, has the exclusive authority to resolve any dispute about the enforceability of the arbitration process. The evidence before the trial court proved as a matter of law the contents of the Arbitration Agreement and that Martinez signed the Acknowledgement. Amazon.com Services, LLC, 711 S.W.3d at 261–62.
*8 The Arbitration Agreement requires that the following claims or disputes be submitted to final and binding arbitration (1) “any legal or equitable claim by or with respect to [Martinez] for any form of physical or psychological damage, harm or death which relates to an accident, occupational disease, or cumulative trauma, including … claims of negligence or gross negligence”; and (2) the determination of whether a claim is covered by the Arbitration Agreement (collectively the “Claims”). This arbitration requirement covers all such claims that Martinez had on November 30, 2020 or in the future against Builders South Texas, “its officers, directors, owners, Employees, representatives, agents, subsidiaries, affiliates, successors, or assigns.”6 The Arbitration Agreement provides that it applies “to any claims that may be brought by [Martinez’s] spouse, children, parents, beneficiaries, Representatives, executors, administrators, guardians, heirs or assigns (including … any survival or wrongful-death claims).”7 The agreement calls these parties “Covered Parties.”
The Arbitration Agreement provides that “[t]he arbitrator, and not any federal, state, local court or agency, shall have exclusive authority to resolve any dispute relating the interpretation, applicability, enforceability or formation of this agreement including … any claim that all or any part of this agreement is void or voidable.” Any arbitration under the Arbitration Agreement must be administered by the AAA under the then-current AAA Employment Rules. The Arbitration Agreement provides that it is equally binding upon and applies to any such claims that may be brought by “an Employer and each Employee and his/her spouse, children, beneficiaries, Representatives, executors, parents, administrators, guardians, heirs or assigns (including, but not limited to any survival or wrongful-death claim).”8 The Arbitration Agreement states that this binding arbitration will be the sole and exclusive remedy for resolving any such claim or dispute.
Although Martinez signed the Acknowledgement, nobody signed the Arbitration Agreement on behalf of the Employer. The agreement does not provide a signature block or other space for an individual to sign on behalf of the Employer or any other entity. For a signature to be the only way to manifest assent to an agreement, the parties must “explicitly require signatures as a condition of mutual assent.” Mid-Continent Cas. Co., 323 S.W.3d at 157; see GSC Wholesale, LLC, 654 S.W.3d at 566. No language in the Arbitration Agreement says that assent thereto may only be made by signature or that signatures by the parties are a condition precedent to the formation of the agreement. The Acknowledgement states that Martinez understands that the Employer is also accepting and agreeing to comply with the Arbitration Agreement and that the agreement applies to all Employees without regard to whether they have completed and signed the Acknowledgement form or a similar document. Thus the plain text of the Arbitration Agreement provides that assent may be made to the agreement by conduct, without any signature, by Martinez’s continued employment after receiving notice of the Arbitration Agreement. If this court were to construe the Arbitration Agreement to require a party to sign the agreement for the party to manifest assent to the agreement, this construction would make the foregoing language meaningless. Under the unambiguous language of the Arbitration Agreement, as a matter of law, the agreement does not explicitly require a party’s signature as a condition of mutual assent. See Mid-Continent Cas. Co., 323 S.W.3d at 157; GSC Wholesale, LLC, 654 S.W.3d at 563–68. Therefore, the Employer’s signing of the Arbitration Agreement is not a condition precedent to the agreement’s formation, and the Employer may manifest its assent to the Arbitration Agreement by its conduct. See Mid-Continent Cas. Co., 323 S.W.3d at 157; GSC Wholesale, LLC, 654 S.W.3d at 563–68.
*9 In the absence of a signature on an agreement, a court may look to other evidence to establish a party’s assent to the agreement’s terms. SK Plymouth, LLC v. Simmons, 605 S.W.3d 706, 718 (Tex. App.—Houston [1st Dist.] 2020, no pet.). A party’s intent to be bound by an agreement may be evidenced by its conduct at the time the agreement was drafted and by its subsequent conduct reflecting that it was acting in accordance with the agreement’s terms. Id. Courts have considered various actions taken by an employer to determine whether the employer intended to be bound by an arbitration agreement, including the employer’s act of drafting the arbitration agreement, its actions in maintaining the agreement as a business record, and its actions in moving to enforce the agreement after the employee filed suit against it. Id.
An offer was made to Martinez when the Arbitration Agreement was presented to her, and she accepted that offer in strict compliance with the terms of the offer and manifested her unconditional assent to the Arbitration Agreement’s terms by signing the Acknowledgement. The Arbitration Agreement states that adequate consideration for the agreement is represented by, among other things, eligibility for (and not necessarily any receipt of) benefits under the Plan and the fact that it is mutually binding on both the Employer and Employees. The record reflects that the Plan Summary, the Arbitration Agreement, and the Acknowledgement are form documents drafted by the Employer and that BFS maintains the English-language and Spanish-language versions of the Plan Description, including the Arbitration Agreement, as a business record. The BFS Parties moved to compel arbitration under the Arbitration Agreement after the De Leon Parties filed suit against them. See Bradford v. Brident Dental Servs., No. H-23-3460, 2024 WL 1839458, at *5–7 (S.D. Tex. Apr. 26, 2024); In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 676 (Tex. 2006); Amazon.com Services, LLC, 711 S.W.3d at 261–62; GSC Wholesale, LLC, 654 S.W.3d at 563–68; SK Plymouth, LLC, 605 S.W.3d at 718–20. The evidence proves as a matter of law that Builders South Texas unconditionally assented to the Arbitration Agreement’s terms and that the Arbitration Agreement was formed by a meeting of the minds between Martinez and Builders South Texas.
6. Clear and Unmistakable Agreement to Arbitrate Arbitrability Issues
We next address whether the Arbitration Agreement contains a clear and unmistakable agreement to arbitrate arbitrability issues. For the most part, the determination of whether parties have agreed to delegate arbitrability issues to an arbitrator is governed by “ordinary state-law principles that govern the formation of contracts.” TotalEnergies E&P USA, Inc., LLC, 667 S.W.3d at 702 (quoting First Options of Chicago, Inc., 514 U.S. at 944, 115 S.Ct. 1920). But because parties often might not realize the significance of having arbitrators decide the scope of their own powers, and to avoid the risk of requiring parties to arbitrate a dispute they have not agreed to arbitrate, courts will only enforce an agreement to delegate an arbitrability issue to the arbitrator if that agreement is “clear and unmistakable.” TotalEnergies E&P USA, Inc., LLC, 667 S.W.3d at 702.
The Supreme Court of Texas has held that if an arbitration agreement provides that the arbitration shall be administered by the AAA in accordance with the AAA Commercial Rules, then the parties have incorporated the AAA Commercial Rules into their arbitration agreement, and these rules are a part of the parties’ agreement as if they were set forth within the agreement itself. See id. at 709. Absent any conflict between these rules and the rest of the agreement, these rules are binding. See id. A rule providing 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 or to the arbitrability of any claim or counterclaim” clearly and unmistakably delegates the determination of arbitrability issues to the arbitrator. See id. at 710–11.
*10 As a general rule, an agreement to arbitrate disputes in accordance with rules providing that the arbitrator shall have the power to determine arbitrability incorporates those rules into the agreement and clearly and unmistakably demonstrates the parties’ intent to delegate arbitrability issues to the arbitrator. See id. at 712. Though the parties may agree to limit their delegation of arbitrability issues to the arbitrator to only certain claims or controversies or to only certain arbitrability issues, limitations on the scope of the arbitration agreement do not limit the delegation of arbitrability issues to the arbitrator. See id. If a provision clearly and unmistakably delegates the determination of the arbitrability of the claims at issue to the arbitrator, the delegation provision is severable from the broader arbitration agreement, and courts must enforce the delegation provision and require the arbitrator to decide whether the parties agreed to arbitrate the claims at issue, unless a party opposing arbitration specifically and successfully challenges the validity or enforceability of the delegation provision on legal or public policy grounds. See id. at 718–19; RSL Funding, 569 S.W.3d at 121.
The Arbitration Agreement provides for arbitration administered by the AAA under the AAA Employment Rules. Thus, the AAA Employment Rules were incorporated into the agreement, and these rules are a part of the Arbitration Agreement as if they were set forth within the agreement itself. See TotalEnergies E&P USA, Inc., 667 S.W.3d at 709. Rule 1 of the AAA Employment Rules provides:
1. Applicable Rules of Arbitration
The parties shall be deemed to have made these rules a part of their arbitration agreement whenever they have provided for arbitration by the [AAA] or under [the AAA Employment Rules] or for arbitration by the AAA of an employment dispute without specifying particular rules … These rules, and any amendment of them, shall apply in the form in effect at the time the demand for arbitration or submission is received by the AAA.
Am. Arb. Ass’n, Employment Arbitration Rules, 10 (Jan. 1, 2023), http://adr.org/sites/default/files/EmploymentRules_Web_3.pdf (last accessed July 29, 2025).
Rule 6 of the AAA Employment Rules provides:
6. Jurisdiction
a. The 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.
b. The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part….
Id. at 12. The language of Rule 6 of the AAA Employment Rules is substantially similar to the language of Rule 7(a) of the AAA Commercial Rules applied by the TotalEnergies court. See TotalEnergies E&P USA, Inc., 667 S.W.3d at 700. Rule 6 does not conflict with the rest of the Arbitration Agreement and is binding. See id. Rule 6 clearly and unmistakably delegates the determination of arbitrability issues to the arbitrator. See id. at 710–11. In addition the Arbitration Agreement contains delegation provisions that clearly and unmistakably delegate the determination of arbitrability issues to the arbitrator: (1) “[t]he arbitrator, and not any federal, state, local court or agency, shall have exclusive authority to resolve any dispute relating the interpretation, applicability, enforceability or formation of this agreement including … any claim that all or any part of this agreement is void or voidable”; (2) “[requiring arbitration of claims and disputes as to] whether a claim is covered by [the Arbitration Agreement]” (“Delegation Provisions”). Under the unambiguous language of the Arbitration Agreement, the parties did not agree to limit their delegation of arbitrability issues to the arbitrator to only certain claims or to only certain arbitrability issues. Instead under Rule 6 and the Delegation Provisions, the parties agreed to arbitrate any dispute with respect to the scope or validity of the Arbitration Agreement and any dispute relating to the applicability, scope, or enforceability of the Arbitration Agreement (collectively “Arbitrability Disputes”). The Arbitration Agreement clearly and unmistakably delegates the determination of the Arbitrability Disputes to the arbitrator, and Rule 6 and the Delegation Provisions are severable from the broader arbitration agreement. See id. at 718–19. Because the De Leon Parties have not asserted any challenge to the validity of Rule 6 itself or to either of the Delegation Provisions themselves, courts must enforce Rule 6 and the Delegation Provisions and require the arbitrator to decide the Arbitrability Disputes. See id.
7. Enforcement of the Arbitration Agreement by Non-Signatories
*11 Each of the BFS Parties is a non-signatory to the Arbitration Agreement. We concluded above that under principles of contract law the evidence proves as a matter of law that the Arbitration Agreement was formed and that Martinez and Builders South Texas are parties to the agreement. An issue remains as to whether the BFS Parties may compel arbitration of the De Leon Parties’ claims against them. We presume that under the Jody James Farms case, neither Rule 6 nor the Delegation Provisions delegate to the arbitrator the determination as to whether non-signatories may compel arbitration under the Arbitration Agreement. See Jody James Farms, JV v. Altman Group, Inc., 547 S.W.3d 624, 631–33 (Tex. 2018). An obligation to arbitrate not only attaches to one who has personally signed the written arbitration agreement but may also bind a non-signatory under principles of contract law and agency. In re Rubiola, 334 S.W.3d at 224. The question of who is bound by an arbitration agreement is a function of the intent of the parties, as expressed in the terms of the arbitration agreement. Id. Here, the question is not whether a non-signatory may be compelled to arbitrate, but rather whether a non-signatory may compel arbitration of the claims asserted against it. One situation in which a non-signatory may be able to compel arbitration is if the non-signatory is a third-party beneficiary of the arbitration agreement. See In re Palm Harbor Homes, Inc., 195 S.W.3d at 677. The BFS Parties argue that they are third-party beneficiaries of the Arbitration Agreement.
As a general rule, the benefits and burdens of a contract belong solely to the contracting parties, and no person can sue upon a contract unless the person is a party to or in privity with it. See First Bank v. Brumitt, 519 S.W.3d 95, 102 (Tex. 2017). An exception to this general rule permits a person who is not a party to the contract to sue for breach of the contract if the person qualifies as a third-party beneficiary. Id. Absent a statutory or other legal rule to the contrary, a person’s status as a third-party beneficiary depends solely on the contracting parties’ intent. Id. Specifically, a person seeking to establish third-party-beneficiary status must demonstrate that the contracting parties “intended to secure a benefit to that third party” and “entered into the contract directly for the third party’s benefit.” Id. To create a third-party beneficiary, the contracting parties must have intended to grant the third party the right to be a “claimant” in the event of a breach. Id. To determine whether the contracting parties intended to directly benefit a third party and entered into the contract for that purpose, courts must look solely to the contract’s language, construed as a whole. Id. The contract must include “a clear and unequivocal expression of the contracting parties’ intent to directly benefit a third party,” and any implied intent to create a third-party beneficiary is insufficient. Id. at 103.
In the Arbitration Agreement Martinez agrees to arbitrate all Claims against Builders South Texas’ owners and against Builders South Texas’ successors. Thus, the plain text of the Arbitration Agreement mandates arbitration of Claims between Martinez and the owners or successors of Builders South Texas in which Builders South Texas is not involved. That text would be rendered meaningless if the owner or successor were unable to enforce Martinez’s obligation to arbitrate the Claims. See ConocoPhillips Co. v. Graham, No. 01-11-00503-CV, 2012 WL 1059084, at *6 (Tex. App.—Houston [1st Dist.] Mar. 29, 2012, no pet.) (mem. op.). The benefit conferred on owners and successors of Builders South Texas—the right to enforce the Arbitration Agreement when sued by Martinez—is not merely incidental; rather it is necessary to effectuate one of the purposes of the Arbitration Agreement—the arbitration of any Claims by Martinez against an owner or successor of Builders South Texas. See id. at *7. Under the unambiguous language of the Arbitration Agreement, the owners and successors of Builders South Texas are third-party beneficiaries of the Arbitration Agreement who have the right to enforce the agreement and compel Martinez to arbitrate any Claims she asserts against them. See Energy Transfer LP, ––– S.W.3d at ––––, 2025 WL 1559841, at *16; ConocoPhillips Co., 2012 WL 1059084, at *6–7. The evidence before the trial court proves as a matter of law that BFS is a successor to Builders South Texas, that FirstSource was the owner of Builders South Texas up until the merger with ProBuild Company LLC, and that FirstSource is the owner of BFS. Thus, each of the BFS Parties is a third-party beneficiary of the Arbitration Agreement entitled to enforce the agreement against the De Leon Parties. See In re Palm Harbor Homes, Inc., 195 S.W.3d at 677; Energy Transfer LP, ––– S.W.3d at ––––, 2025 WL 1559841, at *16; ConocoPhillips Co., 2012 WL 1059084, at *6–7.
8. Enforcement of the Arbitration Agreement Against Non-Signatories
*12 Jose and Gustavo are non-signatories to the Arbitration Agreement. An issue remains as to whether the BFS Parties may compel arbitration of Jose’s survival claims based on personal injuries allegedly sustained by Gustavo and of Jose’s wrongful-death claims based on Gustavo’s death. We presume that under the Jody James Farms case, neither Rule 6 nor the Delegation Provisions delegate to the arbitrator the determination as to whether the BFS Parties may compel these non-signatories to arbitrate under the Arbitration Agreement. See Jody James Farms, JV, 547 S.W.3d at 631–33. An obligation to arbitrate not only attaches to one who has personally signed the written arbitration agreement but may also bind a non-signatory under principles of contract law and agency. In re Rubiola, 334 S.W.3d at 224. The question of who is bound by an arbitration agreement is a function of the intent of the parties, as expressed in the terms of the arbitration agreement. Id.
Gustavo is the son of Martinez and Jose who allegedly died before he was born due to a miscarriage. Under the Texas Wrongful Death Act, a person is liable for damages arising from an injury that causes an individual’s death if the injury was caused by the person’s or his agent’s or servant’s wrongful act, neglect, carelessness, unskillfulness, or default. See Tex. Civ. Prac. & Rem. Code Ann. § 71.002(b) (West, Westlaw through 2025 R.S.). In this statute “individual” includes “an unborn child at every stage of gestation from fertilization until birth,” and “death” includes, for an individual who is an unborn child, the failure to be born alive. See id. § 71.001(3),(4) (West, Westlaw through 2025 R.S.). In their live pleading the De Leon Parties assert that they are bringing suit on behalf of Gustavo, who would have been entitled to bring an action for the injury had he been born alive and that they sue for damages sustained as a result of Gustavo’s failure to be born alive.
Moreover, as a general matter, a parent may sign an arbitration agreement on behalf of the parent’s child, and only in “rare case[s]” is such an agreement unenforceable. See Tex. Family Code Ann. § 151.001(a)(7) (West, Westlaw through 2025 R.S.) (recognizing the right of parents to make “decisions of substantial legal significance” concerning their children); Taylor Morrison of Tex., Inc. v. Ha, 660 S.W.3d 529, 534 & n.6 (Tex. 2023); Pearland Urb. Air, LLC v. Cerna, 693 S.W.3d 711, 716 (Tex. App.—Houston [14th Dist.] 2024), aff’d, 714 S.W.3d 585, 587 (Tex. 2025). According to the De Leon Parties, the Ha court ruled that if a parent has signed an arbitration agreement and a party seeks to enforce the agreement against claims of the parent’s child, the only way the party may do so is by direct-benefits estoppel. Though the Ha court based its holding on direct-benefits estoppel, the court never stated that direct-benefits estoppel is the only theory available in this situation. See Ha, 660 S.W.3d at 531–35. The De Leon Parties also assert that the Ha court did not recognize a parent’s general authority to bind his minor child to a contract; instead, according to the De Leon Parties, the Ha court held that parents may sign arbitration agreements on behalf of their children through direct-benefits estoppel by suing based on the contract on their child’s behalf. That is not what the Ha court held. In the Ha opinion the Supreme Court of Texas stated:
Moreover, as a general matter, parents may sign arbitration agreements on behalf of their children. See id. § 151.001(a)(7) (recognizing the right of parents to make “decisions of substantial legal significance” concerning their children). Parents may equitably bind their children to an arbitration agreement through direct-benefits estoppel by suing based on the contract on their child’s behalf … In the same way, parents may also equitably bind their children to an arbitration agreement through direct-benefits estoppel by seeking direct benefits for their children from the contract outside of litigation.
*13 Id. at 534. The high court stated that “[i]n rare cases, an arbitration agreement signed by a parent on a child’s behalf may be unenforceable, such as when a parent’s interests are adverse to the child’s interests.” Id. at 534, n.6. The Ha court held that Tony Ha’s wife and children were bound by an arbitration provision under direct-benefits estoppel, even though they did not sign the agreement containing the arbitration provision. See id. at 534–35. Though the Ha court based its holding on direct-benefits estoppel, the court also stated that as a general matter, parents may sign arbitration agreements on behalf of their children and that in rare cases these agreements may be unenforceable. See id. at 534; Allstate County Mutual Ins. Co. v. Wootton, 494 S.W.3d 825, 834 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (applying doctrine of judicial dictum to statements made by high court deliberately and for future guidance in the conduct of litigation).
The Acknowledgement states that “[a]ll covered claims brought by [Martinez’s] … children … are also subject to the [Arbitration Agreement], and any decision of an arbitrator will be final and binding on such persons and the Employer.” The Arbitration Agreement provides that it applies “to any claims that may be brought by [Martinez’s] children … including … any survival or wrongful-death claims.” The agreement calls these parties “Covered Parties.” The Arbitration Agreement also provides that it is equally binding upon and applies to any such claims that may be brought by “an Employer and each Employee and his/her … children … including … any survival or wrongful-death claim.”9 Wrongful-death claims may be based on an injury that causes the failure of an unborn child to be born alive. See Tex. Civ. Prac. & Rem. Code Ann. §§ 71.001(3),(4), 71.002(b). Under the Arbitration Agreement’s unambiguous language, Martinez exercised her right to bind her children to the Arbitration Agreement, and to the extent Jose or Martinez assert survival claims based on personal injury to Gustavo before his death, Gustavo is bound by the Arbitration Agreement, and the BFS Parties may compel arbitration of these claims under this agreement.10 See Ha, 660 S.W.3d at 534 & n.6; Pearland Urb. Air, LLC, 693 S.W.3d at 716; see also McKinstry v. Valley Obstetrics–Gynecology Clinic, P.C., 428 Mich. 167, 405 N.W.2d 88, 99 (1987) (applying Michigan law).
*14 Under the Wrongful Death Act as it applies here, wrongful-death beneficiaries may pursue a cause of action “only if the individual injured would have been entitled to bring an action for the injury if the individual had lived.” Tex. Civ. Prac. & Rem. Code Ann. § 71.003(a) (West, Westlaw through 2025 R.S.); In re Labatt Food Serv., L.P., 279 S.W.3d 640, 644 (Tex. 2009). The Supreme Court of Texas has consistently held that the right of statutory beneficiaries to maintain a wrongful-death claim is entirely derivative of the decedent’s right to have sued for his own injuries immediately prior to his death. In re Labatt Food Serv., L.P., 279 S.W.3d at 644. Thus, it is well established that statutory wrongful-death beneficiaries’ claims place them in the exact “legal shoes” of the decedent, and they are subject to the same defenses to which the decedent’s claims would have been subject. Id. Regardless of the fact that wrongful-death beneficiaries are seeking compensation for their own personal loss, they still stand in the decedent’s legal shoes and are bound by his agreement. See id. at 646. Therefore, in asserting their respective wrongful-death claims Jose and Martinez are bound by the Arbitration Agreement just as Gustavo is, and the BFS Parties may compel arbitration of these claims under this agreement.11 See id. at 643–47.
9. The De Leon Parties’ Arguments
The De Leon Parties rely on the Thirteenth Court of Appeals’s opinion in In re SSP Partners, in which the court held that Angela Garcia’s agreement to arbitrate her claims against her employer did not require her minor children to arbitrate their claims against the employer. See 241 S.W.3d 162, 169–70 (Tex. App.—Corpus Christi 2007, orig. proceeding [mand. denied]). In that case Garcia agreed to arbitrate “disputes … between the [employer] (or one of its affiliates) and [Garcia]” that cannot be resolved through the employer’s internal dispute resolution procedures or mediation. Id. at 166. In today’s case Martinez agreed to arbitrate “any legal or equitable claim by or with respect to [Martinez] for any form of physical or psychological damage, harm or death which relates to an accident, occupational disease, or cumulative trauma.”12 Garcia agreed that her agreement to arbitrate all claims between her and her employer or its affiliates was binding on her employer, its affiliates, and her and that the agreement bound and benefitted “our successors, subsidiaries, assigns, beneficiaries, heirs, children, spouses, parents and legal representatives.” Id. In today’s case, the Arbitration Agreement provides that it is equally binding upon and applies to any such claims that may be brought by “an Employer and [Martinez] and his/her spouse, children, beneficiaries, Representatives, executors, parents, administrators, guardians, heirs or assigns (including, but not limited to any survival or wrongful-death claim).”13 The Arbitration Agreement states that this binding arbitration will be the sole and exclusive remedy for resolving any such claim or dispute. The Arbitration Agreement also provides that it applies “to any claims that may be brought by [Martinez’s] children … including … any survival or wrongful-death claims.” The agreement calls these parties “Covered Parties.” Because the language of the arbitration agreement in In re SSP Partners was materially different from the language of the Arbitration Agreement in today’s case, In re SSP Partners is not on point.
The De Leon Parties argue that even if it were possible for Martinez to bind Gustavo to the Arbitration Agreement, the claims asserted by Gustavo are not claims “by or with respect to an Employee” that are covered by the Arbitration Agreement. Gustavo is bound by the Arbitration Agreement, and the agreement delegates to the arbitrator the determination of whether Gustavo’s claims are within the scope of the Arbitration Agreement. Therefore, this argument does not provide a proper basis for denying the Motion. See TotalEnergies E&P USA, Inc., 667 S.W.3d at 720–21; RSL Funding, LLC, 569 S.W.3d at 125; Guerra v. Garza, 648 S.W.3d 493, 497 (Tex. App.—San Antonio 2021, no pet.).
10. Conclusion as to the Motion to Compel Arbitration
*15 For the reasons stated above the trial court abused its discretion by failing to (1) grant the BFS Parties’ motion to compel arbitration, (2) enforce Rule 6 and the Delegation Provisions, and (3) compel the parties to proceed to arbitration for the arbitrator (a) to determine the Arbitrability Disputes, and (b) to the extent that the arbitrator determines that the Arbitration Agreement requires arbitration of some or all of the De Leon Partis’ claims, to determine the merits of the claims that the arbitrator concludes are arbitrable. See Yates v. Experian Information Solutions, Inc., No. 3:22-cv-00143, 2023 WL 4747386, at *5 (S.D. Tex. Jul. 25, 2023) (memorandum and recommended ruling), adopted by district court, 2023 WL 5279467, at *1 (S.D. Tex. Aug. 16, 2023); TotalEnergies E&P USA, Inc., 667 S.W.3d at 720–21.14
B. Did the trial court reversibly err in denying the motion to stay contained in the Motion?
The BFS Parties assert that the trial court erred in denying their motion to stay under section 3 of the FAA. As to an arbitration agreement to which the FAA applies, Texas courts are required to grant stays pending arbitration if section 3 of the FAA so requires. See OptumRx, Inc. v. Advant-Edge Pharmacy, 713 S.W.3d 460, 475 (Tex. App.—Houston [14th Dist.] 2025, no pet.). The United States Supreme Court has concluded that when a trial court determines that a lawsuit involves a dispute subject to arbitration under the FAA and a party has requested a stay of the court proceeding pending arbitration, section 3 of the FAA requires that the trial court stay the proceeding until arbitration has been had in accordance with the terms of the agreement, as long as the applicant for the stay is not in default in proceeding with the arbitration. See Smith v. Spizzirri, 601 U.S. 472, 477–78, 144 S.Ct. 1173, 218 L.Ed.2d 494 (2024). The trial court should have granted the BFS Parties’ motion to compel arbitration. Therefore, under section 3 of the FAA, the trial court was required to stay the proceeding in the trial court until arbitration has been had in accordance with the terms of the Arbitration Agreement, as long as the BFS Parties are not in default in proceeding with the arbitration. See id. The trial court reversibly erred in denying the BFS Parties’ request for a stay under section 3 of the FAA and in failing to grant the stay required under that section. See id.
III. Conclusion
Because the Arbitration Agreement provides that the FAA applies to it, the BFS Parties are not required to establish that the transaction at issue involves or affects interstate commerce. Considering all of the evidence before the trial court in the light most favorable to the challenged finding and indulging every reasonable inference that would support it, crediting favorable evidence if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not, the evidence would not enable reasonable and fair-minded people to find (1) that Martinez was “actively engaged in the transportation of goods across borders via the channels of foreign or interstate commerce” and played “a direct and necessary role in the free flow of goods across borders” or (2) that Martinez was a member of a class of workers who were “actively engaged in the transportation of goods across borders via the channels of foreign or interstate commerce” and played “a direct and necessary role in the free flow of goods across borders.” Under the applicable legal standard, we conclude that the evidence is legally insufficient to support the trial court’s implied finding that Martinez falls within the transportation-worker exemption under Section 1, and the trial court abused its discretion to the extent it found that Martinez falls within this exemption or concluded that the FAA does not apply to the Arbitration Agreement.
*16 The evidence proves as a matter of law that an arbitration agreement—the Arbitration Agreement—was formed and that Martinez and Builders South Texas are parties to the agreement. The Arbitration Agreement clearly and unmistakably delegates the determination of the Arbitrability Disputes to the arbitrator, and Rule 6 and the Delegation Provisions are severable from the broader arbitration agreement. Because the De Leon Parties have not asserted any challenge to the validity of Rule 6 itself or to either of the Delegation Provisions themselves, courts must enforce Rule 6 and the Delegation Provisions and require the arbitrator to decide the Arbitrability Disputes. Each of the BFS Parties is a third-party beneficiary of the Arbitration Agreement entitled to enforce the agreement against the De Leon Parties.
Under the Arbitration Agreement’s unambiguous language, Martinez exercised her right to bind her children to the Arbitration Agreement, and to the extent Jose or Martinez assert survival claims based on personal injury to Gustavo before his death, Gustavo is bound by the Arbitration Agreement, and the BFS Parties may compel arbitration of these claims under this agreement. In asserting their respective wrongful-death claims Jose and Martinez stand in the Gustavo’s legal shoes and are bound by the Arbitration Agreement just as Gustavo is. Therefore, the BFS Parties may compel arbitration of the wrongful-death claims under this agreement.
The trial court reversibly erred in denying the BFS Parties’ request for a stay under section 3 of the FAA and in failing to stay the proceeding in the trial court until arbitration has been had in accordance with the terms of the Arbitration Agreement, as long as the BFS Parties are not in default in proceeding with the arbitration.
Therefore, we sustain the BFS Parties’ sole issue, reverse the trial court’s order, and remand with instructions to the trial court to issue an order (1) granting the Motion, (2) compelling the parties to proceed to arbitration before the AAA under the Arbitration Agreement, (3) requiring the arbitrator (a) to determine the Arbitrability Disputes, and (b) to the extent that the arbitrator determines that the Arbitration Agreement requires arbitration of some or all of the De Leon Parties’ claims, to determine the merits of the claims that the arbitrator concludes are arbitrable; and (4) staying the proceeding in the trial court until arbitration has been had in accordance with the terms of the Arbitration Agreement, as long as the BFS Parties are not in default in proceeding with the arbitration.
Footnotes |
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| 1 | The descriptions and quotations in this opinion are from the English-language version of the Spanish-language document that was made available to Martinez. Undisputed testimony in the record shows that this Spanish-language version is an accurate translation of and substantively identical to the English-language version of document. |
| 2 | We need not address the BFS Parties’ argument that if the FAA does not apply to the Arbitration Agreement, then the Texas Arbitration Act applies to the Arbitration Agreement. |
| 3 | A party opposing arbitration may prove that there is no arbitration agreement by proving that the agreement containing the arbitration provision at issue was not formed. In re Morgan Stanley & Co., 293 S.W.3d 182, 187–88 (Tex. 2009). |
| 4 | The Arbitration Agreement provides that Texas common law applies to the Arbitration Agreement to the extent the FAA does not apply. |
| 5 | emphasis added. |
| 6 | emphasis added. |
| 7 | emphasis added. |
| 8 | emphasis added. |
| 9 | The De Leon Parties assert that Martinez only agreed to arbitrate her own individual claims, not any claim derivative of Gustavo’s rights. To the extent the De Leon Parties make this point in support of an argument that Gustavo is not bound by the Arbitration Agreement, this point lacks merit because the plain text of the Arbitration Agreement provides that it “applies to any such claims that may be brought by … each Employee and his/her spouse, children, parents, beneficiaries, [r]epresentatives, executors, administrators, guardians, heirs or assigns (including, but not limited to, any survival or wrongful-death claim),” and the agreement does not limit the survival or wrongful-death claims to situations in which Martinez is the decedent or the wrongful-death beneficiary. To the extent the De Leon Parties make this point in support of an argument that the scope of the Arbitration Agreement is limited to Martinez’s individual claims, the Arbitration Agreement delegates to the arbitrator the determination of this issue regarding the agreement’s scope, and this argument does not provide a proper basis for denying the Motion. See TotalEnergies E&P USA, Inc., 667 S.W.3d at 720–21; RSL Funding, LLC, 569 S.W.3d at 125; Guerra v. Garza, 648 S.W.3d 493, 497 (Tex. App.—San Antonio 2021, no pet.). |
| 10 | The De Leon Parties assert that Texas law provides only six theories by which arbitration agreements may be enforced by non-signatories: (1) incorporation by reference; (2) assumption; (3) agency; (4) alter ego; (5) equitable estoppel; and (6) third-party beneficiary. This is not correct. Without relying on any of these six theories, a court may conclude that a non-signatory has the right to compel arbitration under an arbitration agreement based on the court’s interpretation of the agreement as granting that right to the non-signatory. See In re Rubiola, 334 S.W.3d at 223–24; Amazon.com Services, LLC, 711 S.W.3d at 265. |
| 11 | We need not and do not address the BFS Parties’ argument that in asserting his wrongful-death and survivor claims Jose is bound by the Arbitration Agreement under the doctrine of direct-benefits estoppel. |
| 12 | Emphasis added. |
| 13 | Emphasis added. |
| 14 | We express no opinion on the merits of the parties’ claims or on whether the arbitrator or the courts must resolve them. |