Opinion
No. 05-16-00703-CV
03-20-2017
IN RE JASON SIGNOR AND CLEBURNE AL PARTNERS, L.P., Relators MAPP CONSTRUCTION, LLC, Appellant v. BLACKALL MECHANICAL, INC., Appellee
On Appeal from the 95th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-15-14208
MEMORANDUM OPINION
Before Justices Lang-Miers, Stoddart, and O'Neill
Opinion by Justice Lang-Miers
The Hon. Michael J. O'Neill, Justice, Assigned
MAPP Construction, LLC appeals the trial court's denial of its motion to compel arbitration and Jason Signor and Cleburne AL Partners, L.P. ask this Court, by writ of mandamus, to order the trial court to withdraw its order compelling Signor's deposition. We conclude that the trial court erred by denying the motion to compel arbitration and that, as a result, the petition for writ of mandamus is moot. We reverse, render, and remand in part and dismiss in part.
BACKGROUND
Appellant MAPP brought this interlocutory appeal challenging the trial court's denial of its motion to compel arbitration. Cleburne AL Partners, L.P., the project owner, contracted with MAPP, as general contractor, to construct Cleburne Assisted Living and Memory Care Facility in Cleburne, Texas. Appellee Blackall Mechanical, Inc. was a subcontractor and contracted with MAPP to work on the heating, ventilation, and air conditioning (HVAC) systems for the facility.
The contract between Cleburne and MAPP is referred to as the Prime Contract. It provides that all "[c]laims, disputes, or other matters in controversy arising out of or related to the [Prime] Contract . . . shall be subject to mediation as a condition precedent to binding dispute resolution." Any claim not resolved by mediation shall be subject to arbitration upon written demand and arbitration awards "shall be final[.]" The Prime Contract also provides, "The Contract shall be governed by the law of the place where the Project is located except that, if the parties have selected arbitration as the method of binding dispute resolution, the Federal Arbitration Act shall govern Section 15.4" (the arbitration provision).
In addition, article 27 of the subcontract between MAPP and Blackall provides:
In the event of any dispute arising between the Contractor and Subcontractor under or relating to the Subcontract, or the breach thereof, and such dispute does not involve claims by the Owner against the Contractor for defective and/or non-conf[o]rming work, then any such dispute shall be resolved as provided for in Article 31. . . .
Notwithstanding the above paragraph, in the event of any dispute between Subcontractor and Contractor arising out of or relating to the Subcontract, or the breach thereof, which involves claims by the Owner against the Contractor for defective and/or non-conf[o]rming work, the dispute shall be decided in accordance with the dispute resolution procedures set forth in the . . . Contract Documents, and Subcontractor, its suppliers, subcontractors and its guarantors, surety, or sureties, shall be bound to Contractor to the same extent that Contractor is bound to the Owner by the terms of the Contract Documents and by any
decisions or determination made under the Contract Documents by an authorized person, board, court, arbitration, or other tribunal. . . .
If the Contractor is bound, by virtue of the Prime Contract or by any other type of agreement, to participate and resolve any dispute arising out of the Contract Documents involving the Owner, Architect or any other Third-Party through arbitration, Subcontractor, it[s] suppliers, subcontractors and its guarantors, surety, or sureties, shall be bound to participate and resolve any and all disputes in the same arbitration arising out of or relating to this Subcontract, or the breach thereof.
. . . .
In the event that litigation between Subcontractor, Contractor, or the Owner is commenced as it relates to Work in this subcontract, such litigation shall be immediately stayed or dismissed if either Contractor or the Owner thereafter initiates arbitration in accordance with the Contract Documents and subsequently seeks participation by Subcontractor in the arbitration. Further, any participation in such litigation by Contractor or the Owner at a time prior to initiation of arbitration or joinder of the Subcontractor to the arbitration shall not be construed as a waiver of arbitration rights. Any party to this Agreement who opposes efforts to stay such litigation shall be compelled to pay all costs and attorneys' fees incurred by the party or parties who move for the litigation to be stayed.
Article 31 states: "GOVERNING LAW. The terms and conditions of this agreement shall be governed by and interpreted in accordance with the laws of the State of Texas without regard to the application of any conflicts of law principles."
Cleburne ultimately terminated MAPP from the facility project and related projects. MAPP initiated arbitration against Cleburne under the terms of the Prime Contract to resolve disputes over the work performed and amounts owed under the Prime Contract. Blackall filed suit against MAPP to recover payment for its work under the Subcontract and to foreclose its mechanic's lien. MAPP answered and moved to compel arbitration of Blackall's claims as part of the arbitration proceeding between MAPP and Cleburne. MAPP attributed the basis of some of Cleburne's claims to defective and delayed work by Blackall. To support its motion to compel, MAPP attached to its motion an affidavit by its project manager Vernon Anderson.
Blackall opposed the motion to compel arbitration and argued that the "sole basis for arbitration" was article 27 of the Subcontract. It said that "arbitration is required if the Project Owner claims that there is defective work performed by the subcontractor, Blackall Mechanical." Blackall argued that Cleburne provided an affidavit by its representative Jason Signor stating that Blackall had not breached the Subcontract and "therefore there is no defective work." Blackall contended that, as a result, "the predicate facts for arbitration do not exist[.]"
Signor stated that he was authorized to make the affidavit on behalf of Cleburne and other related entities.
MAPP replied and attached an exhibit entitled: "Heartis. MAPP Defective Work Summary." MAPP stated the summary was "prepared by Heartis in the arbitration" between MAPP and Cleburne. The summary stated that "[a]fter MAPP was terminated, defective and/or non[-]conforming portions of the Work were noted at the Projects." The summary set out a "preliminary listing of these items" that included defective and non-conforming work on the HVAC system at the facility. MAPP stated that Blackall performed the HVAC work referenced in the summary. MAPP asked the trial court to take judicial notice of the Defective Work Summary filed in the pending arbitration.
Cleburne is one of five entities that hired MAPP to construct assisted living and memory care facilities. These entities are collectively referred to in the record, at times, as "Heartis."
Separately, Blackall filed a motion to compel the deposition of Signor. In response to the motion, Signor argued that the trial court should stay the proceedings—including his deposition—because the issues were subject to arbitration and it would be less burdensome for Blackall to seek discovery of evidence from MAPP instead of Signor.
After a hearing, the trial court denied the motion to compel arbitration and granted the motion to compel Signor's deposition. MAPP filed this interlocutory appeal arguing that the trial court erred by denying its motion to compel arbitration. Signor and Cleburne filed a petition for writ of mandamus asking this Court to order the trial court to withdraw its order compelling Signor's deposition. This Court consolidated the original proceeding into the interlocutory appeal. Because our disposition of the interlocutory appeal renders the original proceeding moot, we first address the interlocutory appeal of the denial of the motion to compel arbitration.
Blackall states that, at the hearing, Cleburne's counsel said that there was "no current claim for defective and/or non[-]conforming work" and refers to this statement as "Relators' counsel's admission at the hearing that there were currently no such claims against Blackall." The text from the relevant exchange reads:
[MAPP'S COUNSEL]: We just received the list of defective work last week, so until we knew what the owner was claiming, we haven't been in a position to assert any claims against them yet. So it is coming. It has not been done yet. We didn't assert it in this court because we feel we'd be giving up to the jurisdiction of the Court, and we'd be watering down our argument.
We believe there is a claim. We're going to assert it, and, in fact, we've got until June 15th under the arbitration to assert that claim. That's why there's no claim before this jurisdiction against Blackall right now.
THE COURT: So there's no current claim for defective and/or non[-]conforming work?
[SIGNOR'S COUNSEL]: No.
[MAPP'S COUNSEL]: Not on us against Blackall. We haven't filed it yet. There are allegations—
THE COURT: Well, very, very—[MAPP's Counsel], very simple question.
[MAPP'S COUNSEL]: Uh-huh.
THE COURT: Is there a currently a [sic] claim against Blackall for defective and/or non[-]conforming work?
[MAPP'S COUNSEL]: We believe, based on the allegations that the owner has provided me in the arbitration, there are.
APPLICABLE LAW AND STANDARD OF REVIEW
In reviewing a trial court's order denying a motion to compel arbitration, we review the trial court's legal determinations de novo and defer to the trial court's factual determinations if they are supported by evidence. Big Bass Towing Co. v. Akin, 409 S.W.3d 835, 838 (Tex. App.—Dallas 2013, no pet.); see AdvoCare GP, LLC v. Heath, No. 05-16-00409-CV, 2017 WL 56402, at *2 (Tex. App.—Dallas Jan. 5, 2017, no pet.). Whether an arbitration agreement is enforceable and whether an arbitration clause imposes a duty to arbitrate are matters subject to de novo review. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding) (enforceability); Ascendant Anesthesia PLLC v. Abazi, 348 S.W.3d 454, 458 (Tex. App.—Dallas 2011, no pet.) (duty to arbitrate).
Appellant argues that, because the Subcontract provides that it is governed by Texas law but does not specifically exclude the Federal Arbitration Act (FAA), the arbitration provisions in article 27 of the Subcontract are governed by both the FAA and the Texas Arbitration Act (TAA). Appellee contends that, because the arbitration provisions in the Prime Contract are controlled by the FAA, this appeal is brought under section 51.016 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.016 (West 2015) (authorizing appeals of judgments and interlocutory orders of matters subject to the FAA). In light of the general choice-of-law clause in the Subcontract and both parties' statement that the FAA applies, "we apply the FAA, while recognizing that the TAA also applies to the extent it is consistent with the FAA." Roehrs v. FSI Holdings, Inc., 246 S.W.3d 796, 803 (Tex. App.—Dallas 2008, pet. denied).
In general, a party seeking to compel arbitration under the FAA must establish (1) the existence of a valid, enforceable arbitration agreement and (2) that the claims at issue fall within the agreement's scope. Bonded Builders Home Warranty Assoc. of Tex., Inc. v. Smith, 488 S.W.3d 468, 476 (Tex. App.—Dallas 2016, no pet.); see In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding). If the trial court finds a valid agreement to arbitrate, the burden shifts to the party opposing arbitration to raise an affirmative defense to enforcing arbitration. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). If it is established that there is a valid arbitration agreement and the claims fall within the scope of that agreement, a court has no discretion and must compel arbitration. Bonded Builders, 488 S.W.3d at 476.
Courts employ a strong presumption in favor of arbitration when deciding whether claims fall within an arbitration agreement. In re Rubiola, 334 S.W.3d 220, 225 (Tex. 2011) (orig. proceeding). This presumption particularly applies where the clause is broad. Ascendant, 348 S.W.3d at 459, 461; see 950 Carbindale, L.P. v. Kotts Capital Holdings Ltd. P'ship, 316 S.W.3d 191, 195-96 (Tex. App.—Houston [14th Dist.] 2010, no pet.). "In such cases, '[i]n the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail.'" BDO Seidman, LLP v. J.A. Green Dev. Corp., 327 S.W.3d 852, 857 (Tex. App.—Dallas 2010, no pet.) (quoting AT & T Techs., Inc. v. Commc'n Workers of Am., 475 US 643, 650 (1986)). "[A]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." Id. (quoting AT & T Techs., 475 U.S. at 650); see Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex. 1995) (per curiam) (orig. proceeding). Generally, if the factual allegations "touch matters," are "factually intertwined," have a "significant relationship" to, or are "inextricably enmeshed" with the contract containing the arbitration provision, the claim is arbitrable. VSR Fin. Servs., Inc. v. McLendon, 409 S.W.3d 817, 832 (Tex. App.—Dallas 2013, no pet.) (quoting Pennzoil Co. v. Arnold Oil Co., 30 S.W.3d 494, 498 (Tex. App.—San Antonio 2000, no pet.) (orig. proceeding)). But if "the facts alleged in support of the claim stand alone, are completely independent of the contract [containing the arbitration provision], and the claim could be maintained without reference to the contract, the claim is not subject to arbitration." Arnold Oil Co., 30 S.W.3d at 498; see VSR Fin. Servs., Inc., 409 S.W.3d at 832.
ARGUMENTS OF THE PARTIES
MAPP argues that the trial court erred in denying its motion to compel arbitration because the dispute falls within the scope of a valid arbitration agreement. It contends that Blackall's claims satisfy both requirements under the terms of article 27 of the Subcontract to be subject to arbitration under the Prime Contract: (1) Blackall's suit for payment against MAPP arises out of or relates to the Subcontract and (2) the Blackall-MAPP dispute "involves" claims by Cleburne against MAPP for non-conforming or defective work. MAPP argues that "there is no question" that Cleburne has asserted claims that MAPP's work did not comply with the Prime Contract, the evidence and Cleburne's arbitration counterclaims demonstrate that Cleburne's complaints are founded in part on MAPP's untimely performance, and the evidence demonstrates that Blackall's untimely performance impacted the project schedule and—as MAPP's project manager Anderson testified—these "schedule impacts can be traced back to claims asserted by" Cleburne. MAPP contends that, employing the judicially established and commonly understood meaning of "involved," the pleadings alone show that the Blackall-MAPP dispute "involved" Cleburne's claims.
MAPP also contends that the arbitration provisions do not require Cleburne to assert a claim against Blackall and Cleburne's claim only needs to concern MAPP's work (not Blackall's work) "provided that [MAPP's] claim against [Blackall] is 'involved' in [Cleburne's] claim." In addition, MAPP argues that a "direct claim" by Cleburne against Blackall is "legally impossible" because Blackall is not a party or a third-party beneficiary to the Prime Contract and, without privity, Cleburne cannot assert a contractual claim against Blackall.
Blackall argues that it was MAPP's burden to prove that the dispute here "involved claims for 'defective and/or non[-]conforming work' that w[ere] related to the Subcontract" and that MAPP has not satisfied this burden. Blackall contends that this language requires arbitration only if Cleburne claims that Blackall's work was defective or non-conforming and if Cleburne asserts a claim that implicates Blackall's work. Blackall argues that evidence before the trial court—including Signor's affidavit and "[r]elators' counsel's admission" at the hearing that there were no such claims against Blackall—demonstrated that MAPP "wholly failed to produce any conclusive evidence" that Blackall's claims are subject to arbitration.
Blackall argues that there was no evidence of a "timely written Claim" as defined in the Prime Contract "relating to [the] Subcontract." Blackall notes that the Prime Contract defines a "Claim" as a claim between Cleburne and MAPP initiated by written notice to the other party within twenty-one days after the event or occurrence or when the claimant first recognizes the event or occurrence giving rise to the Claim. But the issue here is whether Blackall's claims are within the scope of the arbitration provisions not whether Cleburne or MAPP initiated a "timely written Claim" under the Prime Contract.
Blackall also argues that the trial court did not err in denying the alternative motion to stay.
ANALYSIS
Neither party disputes that a valid arbitration agreement exists. As a result, we focus on whether Blackall's claims fall within the scope of the arbitration agreement.
The Subcontract provides that for "any dispute between Subcontractor and Contractor arising out of or relating to the Subcontract, or the breach thereof" that "involves claims by the Owner against the Contractor for defective and/or non-c[o]nforming work, the dispute shall be decided in accordance with the dispute resolution procedures set forth in the . . . Contract Documents." The Subcontract states that the "Contract Documents" include the Prime Contract. And because the dispute resolution procedures in the Prime Contract are explicitly incorporated by reference in the Subcontract, they are part of the Subcontract. See In re D. Wilson Const. Co., 196 S.W.3d 774, 781 (Tex. 2006) (orig. proceeding) (concluding "expansive arbitration language" in a contract "validly and expressly incorporate[d] by reference" into a separate contract); Phytel, Inc. v. Smiley, No. 05-12-00607-CV, 2013 WL 1397085, at *2 (Tex. App.—Dallas Apr. 5, 2013, no pet.) ("When a document is incorporated into another by reference, both documents must be read and construed together.").
Blackall states that the contractual provisions at issue here are the "combined arbitration clauses" from the Prime Contract and the Subcontract. MAPP likewise contends that the Subcontract "incorporated by reference" the arbitration provisions in the Prime Contract.
Both MAPP and Blackall state that the arbitration provisions are unambiguous but disagree over their meaning. We focus on determining the parties' intent by considering the entire writing, see Ascendant, 348 S.W.3d at 469, and give effect to all the provisions so that none are rendered meaningless. See Seagull Energy E&P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006). We give the language its plain grammatical meaning and examine the language of the arbitration clause in context. In re Wachovia Sec., LLC, 312 S.W.3d 243, 247 (Tex. App.—Dallas 2010, no pet.).
Both federal and Texas courts—including this Court—have concluded that similar arbitration provisions that employ terms like "any dispute" and "relating to" are broad arbitration clauses capable of expansive reach and create a presumption of arbitrability. See Pennzoil Expl. & Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061, 1067 (5th Cir. 1998); AdvoCare GP, LLC, 2017 WL 56402, at *1, 5-6 (concluding clause requiring arbitration of "any controversy, dispute or claim arising out of or in any way related to or involving the interpretation, performance or breach of" a non-disclosure agreement is a broad arbitration clause requiring arbitration of all asserted claims and defenses, including tort claims). With this broad clause, because there is no express provision excluding Blackall's claims from arbitration, "only the most forceful evidence of a purpose to exclude the claim[s] from arbitration can prevail." BDO, 327 S.W.3d at 857 (quoting AT & T Techs., 475 US at 650).
See also Am. Realty Trust, Inc. v. JDN Real Estate-McKinney, L.P., 74 S.W.3d 527, 531 (Tex. App.—Dallas 2002, pet. denied) ("A broad arbitration clause, purporting to cover all claims, disputes, and other matters relating to the contract or its breach, creates a presumption of arbitrability.").
We likewise give the phrase, "which involves claims by the Owner against the Contractor for defective and/or non-conf[o]rming work," its plain grammatical meaning. See In re Wachovia, 312 S.W.3d at 247. "Involves" means "to have within or as part of itself[,]" include, contain. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 1191 (1981); see also In re J.D. Edwards World Sols. Co., 87 S.W.3d 546, 551 (Tex. 2002) (per curiam) (orig. proceeding) (holding that the word "involving" in an arbitration clause is not narrower than the phrase "arising under or related to" and provision requiring arbitration of disputes "involving" a licensing agreement included fraudulent inducement claim).
In the Subcontract, MAPP and Blackall agree that Blackall will perform the HVAC work on the facility owned by Cleburne. Blackall's petition claims that MAPP owes Blackall payment for materials and labor that Blackall provided on the facility. MAPP contends that Cleburne and MAPP are in arbitration under the terms of the Prime Contract concerning disputes about work and delays on construction projects, including the facility. As part of its counterclaims in the arbitration, Cleburne claims that MAPP engaged in deceptive cost practices, schedule delays, and poor quality work. Further, the affidavit submitted in the trial court by MAPP's project manager Vernon Anderson states that MAPP and Cleburne are in a dispute about the facility's completion and claimed delays and amounts owed on the facility and that many delays under the Prime Contract relate to Blackall's "late delivery performance[.]" Anderson also states that Blackall's "untimely performance" of its work under the Subcontract "resulted in schedule impacts that can be traced back to claims asserted by [Cleburne] and subsequently, the acceleration/schedule compression costs incurred by MAPP." And Anderson states that (1) Cleburne advised MAPP of improper work by Blackall "related to exterior mechanical equipment pads" and (2) "a large percentage of Blackall's attic fire caulking work failed inspection by the Texas Department of Aging and Disability Services" and the improper work impacted the ability to attain TDADS approval and required MAPP to "aggressively correct[] and complet[e] Blackall's work through schedule compression and acceleration activities." Anderson states that Blackall's "work has been implicated in" Cleburne's claims about delays in completing the facility.
Blackall argues that Anderson's affidavit is not evidence supporting the motion to compel arbitration because it is hearsay, conclusory and vague, and was not mentioned at the hearing on the motion to compel. But although Blackall argued in its response to the motion to compel that Anderson's affidavit was hearsay, it did not obtain a ruling from the trial court on this objection. Consequently, Blackall waived appellate review of his hearsay objection. See TEX. R. APP. P. 33.1(a). And although Blackall's argument that Anderson's affidavit is conclusory is a defect of substance and can be raised for the first time on appeal, Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 207 (Tex. App.—Dallas 2005, no pet.), Blackall does not identify which of Anderson's statements are conclusory or describe the basis for its contention that they are conclusory. In addition, regardless of whether it was mentioned at the hearing, the record shows that the affidavit was on file at the time the trial court made its decision.
Given our conclusion that Anderson's affidavit is evidence that Blackall's claims fall within the scope of the arbitration clauses, it is not necessary for us to discuss Blackall's arguments concerning other evidence, including the admissibility and substance of the Defective Work Summary. See TEX. R. APP. P. 47.1.
Blackall also contends that Signor's affidavit "indicat[ed] that [Cleburne] had no claims for 'breach of contract' against Blackall"—"which would necessarily have covered all 'defects and non-conformities'"—"but instead reserved the right to make claims at some future date." But, as MAPP states, Signor's affidavit only stated that Cleburne was making no claim that Blackall "was knowingly involved in or aware of any . . . breach of contract" and reserved Cleburne's right to assert a claim against Blackall "based on new facts that are not presently known to" Cleburne.
The date of Signor's affidavit is July 30, 2015. The date of Anderson's affidavit—in which he, as MAPP's project executive, testified that Blackall's work "has been implicated" in claims by Cleburne against MAPP with respect to the facility—is February 5, 2016.
Additionally, Blackall argues that a presumption of arbitrability only applies when an arbitration agreement is ambiguous and that the presumption does not apply here because the arbitration provisions are not ambiguous and the question is merely evidentiary. But, as the supreme court recognizes, "once the party seeking arbitration proves the existence of an enforceable agreement to arbitrate, Texas and federal law recognize a strong presumption 'in favor of arbitration such that myriad doubts—as to waiver, scope, and other issues not relating to enforceability—must be resolved in favor or arbitration.'" G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 521 (Tex. 2015) (quoting In re Poly-America, L.P., 262 S.W.3d 337, 348 (Tex. 2008) (orig. proceeding)); see also Centex/Vestal v. Friendship W. Baptist Church, 314 S.W.3d 677, 684 (Tex. App.—Dallas 2010, pet. denied) ("Because arbitration is favored in the law, a presumption of arbitrability attaches once the existence of an arbitration agreement is established."). The authorities that Blackall cites confirm that the "presumption in favor of arbitration is imposed whenever the scope of an arbitration clause is fairly debatable or reasonably in doubt[,]" FD Frontier Drilling (Cyprus), Ltd. v. Didmon, 438 S.W.3d 688, 694 (Tex. App.—Houston [1st Dist.] 2014, pet. denied), and that courts "apply[] the presumption of arbitrability only where a validly formed and enforceable arbitration agreement is ambiguous about whether it covers the dispute at hand[.]" Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 301 (2010).
Granite cites AT & T Techs., which states—in the context of labor disputes—"where the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that '[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute'" and '"[d]oubts should be resolved in favor of coverage.'" 475 U.S. at 650 (quoting United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582-83 (1960)).
Because the arbitration provisions can reasonably be read to encompass this dispute, we construe them to require arbitration of Blackall's claims. See In re Wachovia, 312 S.W.3d at 247-49; see also In re Kellogg Brown & Root, 166 S.W.3d at 737 ("Doubts regarding an agreement's scope are resolved in favor of arbitration[.]") (emphasis omitted).
Given our disposition of this issue, we do not address MAPP's argument that civil practice and remedies code section 171.026 "forecloses [Blackall's] argument that the presentation of evidence of non-conforming work by [Blackall] is a necessary condition to referring a case for arbitration." See TEX. CIV. PRAC. & REM. CODE ANN. § 171.026 (West 2011) ("A court may not refuse to order arbitration because: (1) the claim lacks merit or bona fides; or (2) the fault or ground for the claim is not shown."). Nor do we address Blackall's responding argument that section 171.026 concerns the validity of claims underlying a dispute, rather than the "initial issue of scope."
We sustain appellant's sole issue.
ORDER TO COMPEL DEPOSITION
Also before the Court is Signor's and Cleburne's petition for writ of mandamus requesting that this Court order the trial court to withdraw its order compelling the deposition of Signor, Cleburne's executive. The record reflects that the trial court's order compelling the deposition was related to and resulted from the trial court's order denying the motion to compel arbitration. Given our conclusion that the trial court erred in denying the motion to compel arbitration, we conclude that the petition for writ of mandamus is moot.
CONCLUSION
We reverse the trial court's order denying the motion to compel arbitration, render judgment ordering arbitration of Blackall's claims against MAPP, and remand for further proceedings consistent with this opinion. As a result of our conclusion concerning the motion to compel, we dismiss the petition for writ of mandamus as moot.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE 160703F.P05
JUDGMENT
On Appeal from the 95th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-15-14208.
Opinion delivered by Justice Lang-Miers, Justices Stoddart and O'Neill participating.
In accordance with this Court's opinion of this date, we REVERSE the order of the trial court denying appellant MAPP Construction, LLC's motion to compel arbitration, RENDER judgment ordering arbitration of appellee Blackall Mechanical Inc.'s claims against appellant MAPP Construction, LLC, and REMAND for further proceedings consistent with this opinion.
It is ORDERED that appellant MAPP CONSTRUCTION, LLC recover its costs of this appeal from appellee BLACKALL MECHANICAL, INC. Judgment entered this 20th day of March, 2017.