Ellis v. Ron

Decision Date01 April 2011
Docket NumberNo. 10–0243.,10–0243.
Citation54 Tex. Sup. Ct. J. 793,337 S.W.3d 860
PartiesVeronica ELLIS and Pacesetter Builders, Inc. d/b/a Coldwell Banker Pacesetter Steel Realtors, Petitioners,v.Dr. Ron and Tana SCHLIMMER, Respondents.
CourtTexas Supreme Court

OPINION TEXT STARTS HERE

C.M. Henkel III, Fritz, Byrne Head & Harrison, PLLC, Corpus Christi, for Veronica Ellis.G. Don Schauer, Ronald A. Simank, Schauer & Simank, P.C., Corpus Christi, for Pacesetter Builders, Inc.Robert Anderson, Jordan M. Anderson, Anderson Lehman Barre & Maraist, LLP, Corpus Christi, for Dr. Ron Schlimmer.PER CURIAM.

In this case, the court of appeals dismissed an interlocutory appeal of the trial court's order denying the defendants' motion to compel arbitration for want of jurisdiction because the movants failed to establish that the Federal Arbitration Act did not apply. 338 S.W.3d 12, 13–14. We reverse and remand to the court of appeals to consider the appeal's merits.1

In 2006, Ron and Tana Schlimmer purchased a house in Corpus Christi from Veronica Ellis. Coldwell Banker Pacesetter Steel Realtors (Pacesetter) was the broker in the transaction and Ellis, who worked for Pacesetter, was the home's listing agent. After purchasing the home, the Schlimmers allegedly discovered various undisclosed defects. The Schlimmers sued Pacesetter and Ellis, alleging claims for fraud, breach of contract, negligent misrepresentation, and violations of the Deceptive Trade Practices Act. Ellis filed a third-party complaint against the builder from whom she purchased the house originally. Ellis's third-party claim was later severed and the Schlimmers' lawsuit was set for trial. Ellis and Pacesetter initiated discovery and proceeded with the lawsuit until five months before the trial setting, when their lawyers purportedly discovered a mandatory arbitration clause in the Schlimmers' real estate contract with Ellis. The clause provided:

Should there be any disagreement between seller and buyer that can not be resolved through mediation, both buyer and seller agree to submit this disagreement to binding arbitration with a mutually agreeable arbitrator.

Pacesetter and Ellis then filed a motion to abate and compel arbitration. The Schlimmers claimed waiver and estoppel and argued that the language of the agreement did not cover the dispute between the parties.

The trial court denied the motion, and Pacesetter and Ellis filed an interlocutory appeal under section 171.098(a)(1) of the Civil Practice and Remedies Code, a provision of the Texas Arbitration Act. Although the Schlimmers did not contest its jurisdiction, the court of appeals sua sponte dismissed the interlocutory appeal. According to the court, Pacesetter and Ellis's motion to compel failed to invoke either the TAA or the FAA. 338 S.W.3d at 13–14. It reasoned that since the trial court did not decide which statute applied and an interlocutory appeal is only authorized under the TAA, there was no evidence an appeal was authorized. Id. at 14–15. Consequently, the court dismissed the appeal for want of jurisdiction. Id. at 17.

A party attempting to compel arbitration must first establish the existence of a valid arbitration agreement. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003); Tex. Civ. Prac. & Rem.Code § 171.021(a). Once the party seeking arbitration does so, a strong presumption favoring arbitration arises, and the burden shifts to the party opposing arbitration to raise an affirmative defense to the agreement's enforcement. Id. Further, courts should resolve any doubts as to the agreement's scope, waiver, and other issues unrelated to...

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    • Texas Supreme Court
    • May 12, 2017
    ...(Tex. 1992) ("Generally, an affirmative defense is waived if it is not pleaded." (citing Tex. R. Civ. P. 94 )); cf. Ellis v. Schlimmer, 337 S.W.3d 860, 862 (Tex. 2011) (proof that a valid arbitration agreement exists shifts the burden to the party opposing arbitration to raise an affirmativ......
  • Bonded Builders Home Warranty Ass'n of Tex. v. Rockoff
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    ...H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983) ; accord Ellis v. Schlimmer, 337 S.W.3d 860, 861–62 (Tex.2011) ; Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 898–99 (Tex.1995) (orig. proceeding). If the proponent of arbitration......
  • Glassell Producing Co. v. Jared Res., Ltd.
    • United States
    • Texas Court of Appeals
    • January 9, 2014
    ...burden shifts to the party opposing arbitration to raise an affirmative defense to the agreement's enforcement.” Ellis v. Schlimmer, 337 S.W.3d 860, 862 (Tex.2011) (per curiam). Curry asserted no defenses; 8 thus, the sole issue before this Court is the scope of the arbitration clause, or, ......
  • Glassell Producing Co. v. Jared Res., Ltd.
    • United States
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    • November 21, 2013
    ...burden shifts to the party opposing arbitration to raise an affirmative defense to the agreement's enforcement." Ellis v. Schlimmer, 337 S.W.3d 860, 862 (Tex. 2011) (per curiam). Curry asserted no defenses;7 thus, the sole issue before this Court is the scope of the arbitration clause, or, ......
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1 books & journal articles
  • Chapter 25-3 Resisting Arbitration
    • United States
    • Full Court Press Texas Commercial Causes of Action Claims Title Chapter 25 Pleading to Avoid or Compel Arbitration*
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    ...Henry v. Cash Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018) (citations omitted, emphasis in original). See also Ellis v. Schlimmer, 337 S.W.3d 860, 862 (Tex. 2011).[31] In re Merrill Lynch Tr. Co., 235 S.W.3d 185, 188-89 (Tex. 2007) ("If a plaintiff's choice between suing the corporation or suin......

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