Affirmed and Opinion Filed April 26, 2022

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-21-00103-CV

WILLIAM HANN AND SUSANNE HANN, Appellants

V.

VINTAGE ESTATE HOMES, LLC AND VINTAGE ESTATE HOMES OF 

TEXAS LLC, Appellees

On Appeal from the County Court at Law No. 2

Dallas County, Texas

Trial Court Cause No. CC-20-01731-B

MEMORANDUM OPINION

Before Justices Osborne, Pedersen, III, and Reichek

Opinion by Justice Pedersen, III

Appellants challenge the trial court’s February 7, 2021 order vacating an April 

1, 2020 arbitration award. Appellants contend the trial court erred in vacating the 

arbitration award because (ii) the combined question of arbitrability and jurisdiction 

was reserved for the empaneled arbitrator and (ii) appellees waived their complaint 

to the empaneled arbitrator. We affirm the order of the trial court.
–2–

I. BACKGROUND

A. Parties’ Agreements

On April 26, 2016, appellants entered into a contract (Home Contract) with 

Vintage Estate Homes of Texas, LLC (VEH Texas)1for the construction of a house

located at 5308 Diamante, Spicewood, TX, 78669 (Property). The Home Contract

included the following arbitration provision:

19. DISPUTE RESOLUTION; MANDATORY BINDING 

ARBITRATION. THE LIMITED WARRANTY AGREEMENT 

CONTAINS MANDATORY PROCEDURES FOR RESOLVING 

DISPUTES BETWEEN YOU AND US (INCLUDING 

MANDATORY BINDING ARBITRATION), AND THOSE 

PROCEDURES BECOME EFFECTIVE UPON CLOSING. BY 

SIGNING THIS AGREEMENT, YOU AGREE TO ALL THE 

TERMS, CONDITIONS, RESTRICTIONS, DISCLAIMERS, 

WARRANTIES, RELEASES, PROCEDURES AND WAIVERS 

CONTAINED IN THE LIMITED WARRANTY AGREEMENT, 

INCLUDING THE OBLGATION TO SUBMIT ALL CLAIMS, 

DISPUTES AND CONTROVERSIES BETWEEN YOU AND US 

AND OUR AFFILIATES TO BINDING ARBITRATION RATHER 

THAN TO COURT. ANY AND ALL CLAIMS, DISPUTES AND 

CONTROVERSIES BETWEEN YOU AND US OR OUR AFFILIATE, 

WHICH ARE NOT SUBMITTED TO, COVERED OR RESOLVED BY 

THE TERMS OF THE LIMITED WARRANTY AGREEMENT, SHALL 

BE SUBMITTED TO FINAL AND BINDING ARBITRATION IN 

DALLAS COUNTY, TEXAS, AND NOT TO A COURT FOR 

DETERMINATION [ . . . ]. ARBITRATION SHALL BE CONDUCTED 

BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN 

ACCORDANCE WITH ITS CONSTRUCTION INDUSTRY 

ARBITRATION AND MEDIATION RULES THAT ARE IN EFFECT 

AT THE COMMENCEMENT OF THE ARBITRATION 

PROCEEDINGS. THIS AGREEMENT TO ARBITRATE IS 

GOVERNED BY THE FEDERAL ARBITRATION ACT (9 U.S.C. §1 

1

Pursuant to the original contract, the names “Vintage Estate Homes of Texas, LLC” and “Vintage 

Estate Homes, LLC” are used interchangeably.
–3–

1 ET SEQ.), AND THE ARBITRABILITY OF ANY ISSUE WILL BE 

DECIDED BY THE ARBITRATOR.

(emphasis in bold original; emphasis in italics added). On April 26, 2016, 

appellants also signed an amendment to the Home Contract, which provides:

2. The Home Contract provides that Vintage Estate Homes, LLC will 

provide a Limited Warrant [sic] to Buyers at Closing.

3. Vintage Estate Homes, LLC in lieu of providing a Limited Warranty 

shall provide a Limited Warranty (“Home Limited Warranty”) by and 

through an independent third party home warranty provider which shall 

be issued to Buyers at Closing, at Vintage Estate Homes expense.

Parties here to agree as follows:

1. Recitals. The above recitals are true and correct and are expressly 

incorporate [sic] herein.

2. Home Warranty. Vintage Estate Homes, LLC shall provide Buyers 

with a Home Limited Warranty (a copy of which is attached) at Closing 

paid by Vintage Estate Homes, LLC. This Home Limited Warranty 

replaces any other Limited Warranty Agreement to be provided to 

Buyers pursuant to the contract.

3. Limited Warranties: Disclaimer of Implied Warranties: The 

warranties contained in the Home Limited Warranty are the only 

warranties Your [sic] will receive from Us concerning the Home.

VEH Texas constructed the house, and appellants closed on March 10, 2017.

VEH Texas provided a home buyer’s warranty for the Property—the 2-10 Home 

Buyers Warranty (2-10 HBW). Vintage Estate Homes, LLC and appellants executed 

the 2-10 HBW as builder/seller and buyers, respectively. The 2-10 HBW included a 

“Buyer’s Acknowledgment and Consent,” which provides

Buyer(s) agree that any and all claims or disputes between him (them) 

and the Builder/Seller (including any person you contend is responsible 

for a defect in your home) arising from or relating to the Warranty, shall 

be submitted to binding arbitration pursuant to the Federal Arbitration 

Act (9 U.S.C. §§1–16). By signing below, Buyer acknowledges reading 
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the 2-10 HBW Warranty Booklet, and CONSENTS TO THE TERMS 

OF THAT DOCUMENT INCLUDING THE BINDING 

ARBITRATION PROVISION contained therein. Buyer(s) accepts 

the 2-10 HBW warranty and in return, waives the Builder/Seller’s 

implied warranty of habitability, merchantability or fitness to the extent 

allowed by law.

(emphasis in original). The 2-10 HBW included its own arbitration clause, which 

provides:

To expedite the resolution of any and all claims, disputes and 

controversies by or between the homeowner, the Builder/ Seller, 2-10 

HBW, as administrator, the Warranty Insurer or any combination of the 

foregoing, arising from or related to this Warranty, the Warranty 

Insurance Policy, the 2-10 HBW Program, or to the Home, shall be 

settled by binding arbitration. Agreeing to arbitration means You are 

waiving Your right to a jury trial, class action or consolidation.

. . . . 

The arbitration shall be conducted by DeMars & Associates, Ltd or by 

Construction Dispute Resolution Services, LLC or by any mutually 

agreeable arbitration service, pursuant to the service’s applicable rules 

in effect at the time of the arbitration. The choice of the arbitration 

service shall be that of the Homeowner, or if the Homeowner is not 

involved, that of the party who initiates the arbitration. The arbitration 

shall be held in the home. No arbitration proceeding shall involve more 

than one single-family detached dwelling or more than one MultiFamily Building. The arbitrator shall render an award in accordance 

with the substantive law in the state in which the Home is located.

. . . . 

The parties expressly agree that this warranty and this arbitration 

agreement involve and concern interstate commerce and are governed 

by the provisions of the Federal Arbitration Act (9 U.S.C. § 1, et seq.) 

now in effect and as the same may from time to time be amended, to 

the exclusion of any different or inconsistent state or local law, 

ordinance or judicial rule. 

This arbitration agreement is a self-executing arbitration agreement. 

Any disputes concerning the interpretation or the enforceability of this 

arbitration agreement, including without limitation, its revocability or 

voidability for any cause, the scope of arbitrable issues, and any defense 
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based upon waiver, estoppel or laches, shall be decided by the 

arbitrator.

B. Disputes and Arbitration Proceedings

On February 8, 2019, appellants demanded arbitration before the American 

Arbitration Association (AAA), specifically attaching the below request for 

arbitration from the 2-10 HBW.

Appellants’ demand for arbitration included a list of “construction defects to be 

arbitrated,” which itemized and enumerated several alleged defects under specific 

provisions of the 2-10 HBW.
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On February 23, 2019, appellants submitted a letter to Home Buyers 

Warranty, which indicated the fee schedule for AAA and a builder fee for the 

arbitration before AAA of $1,875. On February 26, 2019, appellees emailed 

appellants’ counsel (i) that appellees did “not agree to arbitration before the AAA”

and (ii) that arbitration was to commence under the terms of the 2-10 HBW with 

Construction Dispute Resolution Services. Despite appellees’ objection, appellants 

proceeded to arbitration before the AAA against appellees. The AAA empaneled 

arbitrator Jason Spencer, who conducted the arbitration between the parties on 

February 18 to February 20, 2020. Spencer signed a final award on April 1, 2020, 

which included—under the “Facts of the Case and Initial Findings” section—the 

following:

The Demand for Arbitration was filed with the AAA on February 8, 

2019. Although VEH was served and was corresponding with the 

AAA/Scott Hunter on March 20, 2019, VEH did not file their answer 

until August 9, 2019. The Answer noted VEH “objects to the 

jurisdiction of this arbitration and specific demand is made that the 

Claimants provide written documentation of either of both Respondents 

being subject to arbitration and relief requested herein.” The 

Arbitrability Order was entered by the Arbitrator on October 11, 2019, 

which was supplemented on February 21, 2020.

(emphasis added). Spencer resolved the arbitration in favor of appellants—finding 

several different construction defects. Inter alia, Spencer awarded appellants

damages for repair costs in the amount of $253,092.16; recovery for temporary 

housing during the repairs in the amount of $25,000.00; and appellants’ reasonable 

and necessary attorney’s fees in the amount of $58,853.80.
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C. Motion to Vacate the Arbitrator’s Final Award

On April 3, 2020, appellees filed their petition to vacate arbitration final award 

before the trial court. Appellants answered, asserting that appellees did not object 

“to the Austin attorney Spencer as the arbitrator or conducting the arbitration in 

Travis county.” Following a hearing on appellees’ motion to vacate, the trial court 

entered an order vacating arbitrator Spencer’s final award in favor of appellants.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that 

Plaintiffs’ Motion to Vacate Arbitration Award is GRANTED in its 

entirety. 

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the 

Final Award entered in American Arbitration Association Case No. 01-

19-0000-7687, attached hereto as Exhibit A, is VACATED in its 

entirety.

This appeal followed.2

II. ISSUES RAISED

Verbatim, appellants present three issues to our Court:

1. Was arbitrator Spencer’s appointment a violation of the contract, 

and if so, was vacation of the award required? 

2. Did the trial court err in deciding arbitrability? 

3. Did the trial court err in vacating the arbitration award?

2

It is undisputed that the arbitration agreements are both governed by the Federal Arbitration Act

(FAA). See 9 U.S.C. §§1–16. The FAA provides that an appeal may be taken from an order vacating an 

arbitration award. 9 U.S.C. § 16(a)(1)(E). Texas Rule of Civil Procedure 51.016 provides:

In a matter subject to the Federal Arbitration Act (9 U.S.C. Section 1 et seq.), a person may 

take an appeal or writ of error to the court of appeals from the judgment or interlocutory 

order of a district court, county court at law, or county court under the same circumstances 

that an appeal from a federal district court’s order or decision would be permitted by 9 

U.S.C. Section 16.

TEX. CIV. PRAC. & REM. CODE ANN. § 51.016.
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Appellants’ briefing and presentation in oral argument, however, assert that the trial 

court erred in vacating the arbitration award because (i) the combined question of 

arbitrability and jurisdiction was reserved for the arbitrator under the Home Contract

and (ii) appellees’ waived their complaint to the empaneled arbitrator. We take these 

as the two issues raised before our Court.

III. STANDARD OF REVIEW

“We review a trial court’s decision to vacate or confirm an arbitration award 

de novo, based on the entire record.” Cambridge Legacy Group, Inc. v. Jain, 407 

S.W.3d 443, 447 (Tex. App.—Dallas 2013, pet. denied). “All reasonable 

presumptions are indulged in favor of the award, and none against it.” CVN Group, 

Inc. v. Delgado, 95 S.W.3d 234, 238 (Tex. 2002) (quoting City of San Antonio v. 

McKenzie Const. Co., 150 S.W.2d 989, 996 (1941)). “An arbitration award has the 

same effect as a judgment of a court of last resort, and a court reviewing the award 

may not substitute its judgment for that of the arbitrators merely because it would 

have reached a different decision.” Statewide Remodeling, Inc. v. Williams, 244 

S.W.3d 564, 568 (Tex. App.—Dallas 2008, no pet.).

IV. ANALYSIS

“‘Under the FAA, the validity of an arbitration award is subject to attack only 

on grounds listed in sections 10 and 11 of the Act.’” Roehrs v. FSI Holdings, Inc., 

246 S.W.3d 796, 805–06 (Tex. App.—Dallas 2008, pet. denied) (quoting Thomas 

James Assocs., Inc. v. Owens, 1 S.W.3d 315, 319–20 (Tex. App.—Dallas 1999, no 
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pet.)) A court may vacate an arbitration award “where the arbitrators exceeded their 

powers.” 9 U.S.C.A. § 10(a)(4). The Texas Supreme Court has explained:

Arbitrators derive their power from the parties’ agreement to submit to 

arbitration. City of Pasadena v. Smith, 292 S.W.3d 14, 20 (Tex. 2009). 

They have no independent source of jurisdiction apart from the parties’

consent. I.S. Joseph Co. v. Mich. Sugar Co., 803 F.2d 396, 399 (8th 

Cir.1986). Accordingly, arbitrators must be selected pursuant to the 

method specified in the parties’ agreement. Brook v. Peak Int’l, 

Ltd., 294 F.3d 668, 672–73 (5th Cir. 2002). An arbitration panel 

selected contrary to the contract-specified method lacks jurisdiction 

over the dispute. Accordingly, courts “do not hesitate to vacate an 

award when an arbitrator is not selected according to the contractspecified method.” Bulko v. Morgan Stanley DW, Inc., 450 F.3d 622, 

625 (5th Cir. 2006). So we look to the arbitration agreement 

to determine what the parties specified concerning the arbitratorselection process.

Americo Life, Inc. v. Myer, 440 S.W.3d 18, 21–22 (Tex. 2014).

Issue One: Arbitrability and Jurisdiction

Appellants first assert the trial court erred in vacating the arbitration award 

because the parties had a valid agreement requiring arbitration with the AAA under 

the Home Contract—which reserved the issue of arbitrability for the arbitrator.

Appellants further assert that the questions of jurisdiction and arbitrability are the 

same for the purposes of the parties’ agreements. Appellants rely on our opinion in 

Ancor Holdings, LLC v. Peterson, Goldman & Villani, Inc. to assert “we may not 

vacate an [arbitration] award even if it is based upon a mistake in law or fact.” 294 

S.W.3d 818, 826 (Tex. App.—Dallas 2009, no pet.). Appellants rely on our opinion 

in Saxa Inc. v. DFD Architecture Inc. to assert that the scope of the arbitration 
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agreement and the claims and parties it encompasses are questions of substantive 

arbitrability, reserved for the arbitrator to decide. 312 S.W.3d 224, 229–30 (Tex. 

App.—Dallas 2010, pet. denied). Appellants further refer to our opinions in 

McGehee v. Bowman, 339 S.W.3d 820 (Tex. App.—Dallas 2011, no pet.) and 

Employee Solutions McKinney, LLC v. Wilkerson, 2017 WL 1908626 (Tex. App.—

Dallas May 10, 2017, no pet.) for the same contentions regarding arbitrability.

However, neither Ancor, Saxa, McGehee, nor Wilkerson apply to the dispute 

before us because none of those cases involved an issue challenging the arbitratorselection process—challenging whether the arbitrator was “selected contrary to the 

contract-specified method.” Americo Life, Inc., 440 S.W.3d at 21 (explaining an 

arbitrator selected contrary to the contract-specified method lacks jurisdiction over 

the dispute). Accordingly, we disagree with appellants’ contention that the questions 

of (i) jurisdiction—the question of who has the authority to decide a dispute3—and 

(ii) arbitrability—the question of whether a dispute or claim is subject to an 

arbitration agreement4—are the same in this circumstance. Although both parties

refer to arbitrability, it is apparent from the briefing, record, and oral argument that 

3

“[Arbitrators] have no independent source of jurisdiction apart from the parties’ consent.” Americo 

Life, Inc. v. Myer, 440 S.W.3d 18, 21–22 (Tex. 2014) (citing I.S. Joseph Co. v. Mich. Sugar Co., 803 F.2d 

396, 399 (8th Cir.1986)).

4

“The status, under applicable law, of a dispute’s being or not being resolvable by arbitrators because 

of the subject matter.” Arbitrability, BLACK’S LAW DICTIONARY (11th ed. 2019). “[T]he question of 

arbitrability is a gateway issue . . . . [that] include[s] whether the parties agreed to arbitrate and whether a 

claim or dispute is encompassed in the agreement to arbitrate. Saxa Inc., 312 S.W.3d at 229) (internal 

citations omitted).
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appellants’ issue relates to the trial court’s determination that arbitrator Spencer 

lacked jurisdiction. The trial court made no determination regarding arbitrability.5

Appellees argue the trial court did not err in vacating the arbitration award 

because the parties’ agreements—both the Home Contract and the 2-10 HBW—

required arbitration to proceed under the 2-10 HBW. Appellees assert empaneled 

AAA arbitrator Spencer had no authority to decide any issue in this dispute because 

he was selected contrary to the parties’ agreements under the 2-10 HBW. We agree 

with appellees assertion that Spencer had no authority to decide the issues in this 

dispute.

Here, it is undisputed that the parties entered into two agreements: the Home 

Contract and the 2-10 HBW. It is further undisputed that the parties entered an 

amendment to the Home Contract, which anticipated a separate “home limited 

warranty.” Though not explicitly incorporated by reference in the Home Contract or 

the amendment, it is evident from the record that the 2-10 HBW was the “home 

limited warranty” anticipated in the Home Contract and its according amendment. 

By virtue of the Home Contract’s arbitration agreement, the language “THE 

LIMITED WARRANTY AGREEMENT CONTAINS MANDATORY 

PROCEDURES FOR RESOLVING DISPUTES BETWEEN YOU AND US 

(INCLUDING MANDATORY BINDING ARBITRATION), AND THOSE 

5

Indeed, the record shows the trial court signed no findings or conclusions regarding the arbitrability 

of appellants’ disputes or claims.
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PROCEDURES BECOME EFFECTIVE UPON CLOSING” anticipated a separate 

“limited warranty agreement” and separate arbitration agreement—which would 

become effective upon closing. Furthermore, the Home Contract’s arbitration 

agreement extends its limited application to “ANY AND ALL CLAIMS, 

DISPUTES AND CONTROVERSIES BETWEEN YOU AND US OR OUR 

AFFILIATE, WHICH ARE NOT SUBMITTED TO, COVERED OR RESOLVED BY 

THE TERMS OF THE LIMITED WARRANTY AGREEMENT.” (emphasis added).

Thus, the parties contracted (i) for the 2-10 HBW’s arbitration agreement to 

become effective upon closing and (ii) for the Home Contract’s arbitration 

agreement to apply only when the controversy was not covered by the 2-10 HBW’s 

arbitration agreement. The record shows appellants’ disputes are based on the 

warranties within the 2-10 HBW. The 2-10 HBW—as the “limited warranty 

agreement” anticipated in the Home Contract and its amendment—includes a 

separate arbitration agreement. The pertinent language from the 2-10 HBW 

arbitration agreement encompasses appellants’ disputes:

To expedite the resolution of any and all claims, disputes and 

controversies by or between the homeowner, the Builder/Seller, 2-10 

HBW, as administrator, the Warranty Insurer or any combination of the 

foregoing, arising from or related to this Warranty, the Warranty 

Insurance Policy, the 2-10 HBW Program, or to the Home, shall be 

settled by binding arbitration. Agreeing to arbitration means You are 

waiving Your right to a jury trial, class action or consolidation.

Under a section named “Selecting an Arbitration Service,” the 2-10 HBW’s 

arbitration agreement provided “arbitration shall be conducted by DeMars & 
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Associates, Ltd or by Construction Dispute Resolution Services, LLC or by any 

mutually agreeable arbitration service.” Unlike the Home Contract, the 2-10 HBW’s 

arbitration agreement included no express authority for the AAA to conduct 

arbitration.

Although the parties agreed the 2-10 HBW’s arbitration agreement would 

control in post-closing disputes on the limited home warranty, appellants indicated 

“AAA Arbitration” on their 2-10 HBW’s request for arbitration form to resolve their 

post-closing disputes. The record shows that appellees objected to the AAA’s 

jurisdiction as arbitrator for this dispute; appellees did not mutually agree to AAA 

arbitration under the 2-10 HBW as an “agreeable arbitration service.” Accordingly, 

empaneled AAA arbitrator Spencer was not “selected pursuant to the method 

specified in the parties’ agreement.” Americo Life, Inc., 440 S.W.3d at 21. Since

arbitration nevertheless proceeded to final award, arbitrator Spencer’s final award 

was entered without jurisdiction. See id. 

Therefore, we conclude the trial court did not err in vacating arbitrator 

Spencer’s award, because the empaneled arbitrator lacked jurisdiction under the 

parties’ agreements. See id. (citing Bulko v. Morgan Stanley DW, Inc., 450 F.3d 622, 

625 (5th Cir. 2006)). We overrule appellants’ first issue. Furthermore, because we 

conclude the empaneled arbitrator lacked jurisdiction, we need not reach appellants’

second issue regarding waiver. See TEX. R. APP. P. 47.1 (“The court of appeals must 

hand down a written opinion that is as brief as practicable but that addresses every 
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issue raised and necessary to final disposition of the appeal.”). To that end, we 

pretermit any further discussion of appellants’ second issue.6

V. CONCLUSION

Having overruled appellants’ first issue, we affirm the order of the trial court.

210103f.p05

6

Indeed, discussion of appellants’ second issue of waiver would risk providing an advisory opinion.

/Bill Pedersen, III//

BILL PEDERSEN, III

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

WILLIAM HANN AND SUSANNE 

HANN, Appellants

No. 05-21-00103-CV V.

VINTAGE ESTATE HOMES, LLC 

AND VINTAGE ESTATE HOMES 

OF TEXAS LLC, Appellees

On Appeal from the County Court at 

Law No. 2, Dallas County, Texas

Trial Court Cause No. CC-20-01731-

B.

Opinion delivered by Justice 

Pedersen, III. Justices Osborne and 

Reichek participating.

In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED.

It is ORDERED that appellees VINTAGE ESTATE HOMES, LLC AND 

VINTAGE ESTATE HOMES OF TEXAS LLC recover their costs of this appeal 

from appellants WILLIAM HANN AND SUSANNE HANN.

Judgment entered this 26

th day of April, 2022.