AFFIRMED and Opinion Filed July 17, 2023 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-22-01214-CV STRUCSURE HOME WARRAN TY, LLC, Appellant V. 2RH BROTHERS PROPER TIES, LLC, Appellee On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-21-13529 MEMORANDUM OPINION Before Justices Nowell, Goldstein, and Breedlove Opinion by Justice Nowell This interlocutory appeal arises from th e trial court’s denial of a motion to compel a non-signatory to a limited home wa rranty (Limited Warranty) to arbitrate under the Federal Arbitratio n Act. In two issues, appellant StrucSure Home Warranty, LLC contends th e trial court erre d by denying his motion to compel appellee 2RH Brothers Proper ties, LLC to arbitrate beca use (1) 2RH’s third-party claims against StrucSure necessarily seek the benefits of the Limited Warranty and cannot be determined without reference to it, and (2) 2RH served as the builder’s agent in procuring the Limited Warranty; therefore, 2RH is bound by the arbitration–2– provision. We affirm the trial court’s or der denying StrucSure’s motion to compel arbitration. Background Focis LLC/Focis Holding Group, LLC and CWC Clean with Care d/b/a CWC Restoration and Construction built the ma jority of a home located on Belmont Avenue in Dallas, Texas. On March 26, 2019, 2RH ente red into a “Construction Completion Agreement” with Elton Johnson and Homestead Concepts (Homestead) to finish the home. The home was approxima tely ninety percent complete at that time. Upon completion, 2RH and Raul Ruiz , as realtor, listed the home for sale. On August 2, 2019, Danica and Michae l Sessa entered into a “New Home Contract” with 2RH and Ruiz for $1,050,000. As part of the New Home Contract, 2RH promised to provide a “Builder’s 1- 2-10 Warranty at closing.” 2RH contacted StrucSure to purchase the Limited Warranty. StrucSure is the creator and administra tor of the nationwide StrucSure Home Warranty Program, which provides new hom e warranty coverage against certain types of homebuilder construction defects. Homebuilders apply to StrucSure for admission into the program and upon gaini ng membership and paying an individual enrollment fee, a homebuilder is issued a StrucSure Warranty. On August 22, 2019, StrucSure sent Ruiz, as the authorized agent of 2RH, an email describing what was needed for the Sessas’ home to be enrolled in the warranty program, including copies of the c ity green tags. Ruiz responded that all–3– green tags had been transferred to Ho mestead, and Johnson would be submitting the necessary documents. On September 27, 2019, the Sessas signed the enrollment application listing Homestead as the build er. StrucSure approved the home for enrollment in the warranty program with the provided green tags and builder information. 2RH purcha sed the Limited Warranty fo r $3,412.50, and StrucSure issued the Certificate of Warranty on October 1, 2019. Shortly after closing on the home, the Sessas experienced numerous problems. In November 2019, the Sessas submitted a Notice of Claim to StrucSure, which StrucSure denied after conducting an inves tigation and inspection of the home. In July 2020, the Sessas learned Johnson and Homestead were not the original homebuilders but that 2RH hired them to complete construction of the home. The Sessas then sent letters to 2RH, Ruiz, Ho mestead, and Johnson regarding the home’s deficiencies. On September 30, 2020, coun sel for 2RH sent notice that it was “not responsible for any requested repairs to the Property,” and emphasized the Sessas had the “benefit of a home warranty,” which 2RH purchased for the Sessas’ benefit. StrucSure, however, refused to honor it s obligations under the Limited Warranty because it contended Homestead and Johnson we re not the “builder[s]” of the home. The Sessas filed their original petiti on against 2RH and Ruiz for fraud in a real estate transaction, fraud by misrepre sentation, fraud by c oncealment, fraudulent inducement, fraud by nondisclosure, neglig ence, breach of express warranty, violations of the DTPA, breach of contract regarding warranty a nd repairs, and civil–4– conspiracy. The Sessas a lleged “shoddy construc tion, poor workmanship, improper installation, and incorrectly performed re pairs,” led to numerous issues with the home causing them to “effectively [live] in a construction zone.” 2RH and Ruiz filed an original answer generally denying the allegations and asserting numerous affirmative defenses. 2RH also filed a third-party petition against StrucSure because StrucSure failed to honor the 10-year portion of the Limited Warranty. StrucSure filed a plea in abatement a nd motion to compel arbitration against 2RH. It argued all matters should be referred to mandato ry binding arbitration “in accordance with the arbitra tion agreement that is part of the Express Limited Warranty that [2RH] seeks to enforce.” Th e Limited Warranty included, in relevant part, the following arbitration provision: The parties to this Express Limited Warranty intend and agree that any and all claims, disputes and c ontroversies by or between the Homeowner, the Builder, the Administra tor, and/or the Insurer, or any combination of the foregoing, arising out of or related to this Express Limited Warranty, any alle ged Defect and/or Deficiency in or to the subject Home or the real propert y on which the subject Home is situated, or the sale of the subj ect Home by the Builder, including, without limitation, any claim of breach of contract, negligent or intentional misrepresentation, or nondisclosure in the inducement, execution, or performance of any c ontract, including this arbitration agreement, or breach of any alleged duty of good faith and fair dealing, shall be settled by binding arbitration in a manner consistent with this arbitration agreement. Agreeing to arbitration means You are waiving Your right to a trial by a judge and/or a jury. StrucSure maintained that 2RH should be fo rced to arbitrate its third-party claims based on the doctrine of direct-benefits est oppel and agency. StrucSure attached the–5– affidavit of Glenn Cleek, Clai ms Counsel, to its brief in support, along with several other documents. 2RH filed a response to StrucSure’s mo tion to compel arbitration and argued it was not subject to arbitration because (1) it is not a party to the Limited Warranty; (2) it is not seeking any benefit under the Li mited Warranty; and (3 ) it is not an agent of Homestead. 2RH contended that if the Sessas’ claims are ultimately meritorious, then StrucSure is liable to 2RH for brea ch of contract; however, the contract breached would be StrucSure’s agreemen t to provide the Limited Warranty for $3,412.50, not a breach of the Limited Warranty itself. StrucSure filed a reply arguing 2RH is “clearly seeking the benefits of the Warranty.” It emphasized that 2RH stat ed in its third-party petition that “the Property was ultimately approved for the warranty program, a nd the Warranty was purchased by 2RH for $3,412.50 (the ‘Agreement ’).” (Emphasis in original). The trial court held a hearing on Oct ober 6, 2022. StrucSure continued to argue 2RH sued for breach of the Limi ted Warranty and shoul d be required to arbitrate despite being a non-signatory. Th e trial court; however, said it did not “see it that way”: It seems to me that the - - in the third party petition that the agreement is described as the agreement betw een StrucSure and 2RH to procure the warranty for the benefit of the homeowners, but not that the agreement and the warranty are the sa me thing. And further, as I understand it, the arbitration clause is in the warranty not in the agreement to procure or to provide a warranty to the homeowners.–6– On November 2, 2022, the trial cour t signed an order denying StrucSure’s motion to compel arbitration in its entirety. This appeal followed.
Standard of Review We review the denial of a motion to compel arbitration for an abuse of discretion, deferring to the trial court on fa ctual determinations that are supported by the evidence and reviewing le gal determinati ons de novo. Henry v. Cash Biz, LP , 551 S.W.3d 111, 115 (Tex. 2018); Sidley Austin Brown & W ood, LLP v. J.A. Green Dev. Corp. , 327 S.W.3d 859, 863 (Tex. App.—Dalla s 2010, no pet.). We construe the record in the light favorab le to the trial court’s ruling. J.M. Davidson, Inc. v. Webster , 128 S.W.3d 223, 233 (Tex. 2003). When a party does not request findings of fact and conclusions of law and the co urt files none, it is im plied the trial court made all necessary findings to support its ruling. See Holt Atherton Indus., Inc. v.
Heine , 835 S.W.2d 80, 83 (Tex. 1992). Because the trial court did not issue findings of fact or conclusions of law to explain its denial of the motion to compel arbitration, we must uphold the trial court’s decision on any appropriate legal theory urged below. Louisiana-Pacific Corp. v. Newport Classic Homes, L.P. , No. 05-21-00330- CV, 2023 WL 3000579, at *3 (Tex. App.—D allas Apr. 19, 2023, no pet.) (mem. op.). The parties agree that the Federal Arbitr ation Act applies to their dispute. See 9 U.S.C. §§ 1–16. A party seeking to compel arbitration must first establish that there is a valid arbi tration agreement. In re AdvancePCS Health, L.P. , 172 S.W.3d–7– 603, 605 (Tex. 2005) (per cu riam) (orig. proceeding). The strong presumption favoring arbitration arises only after the pa rty seeking to compel arbitration proves that a valid arbitration agreement exists . J.M. Davidson, Inc , 128 S.W.3d at 227. The party alleging an arbitration agreemen t must present summary proof that the dispute is subject to arbitration, and the party resisting arbitration may contest the opponent’s proof or present evidence s upporting a defense to enforcement. See In re Weekley Homes, L.P. , 180 S.W.3d 127, 130–31 (Tex. 2005) (original proceeding). Direct-Benefits Estoppel In its first issue, StrucSure argues th e trial court erred by denying its motion to compel arbitration because 2RH’s breach of contract and fraud claims are subject to a valid and enforceable arbitration provis ion in the Limited Warranty. It maintains that because 2RH sought and obtained benef its under the Limited Warranty, 2RH is bound by the arbitration clause despite being a non-signatory to the Limited Warranty. 2RH contends it is not seeki ng any benefits under the Limited Warranty so the doctrine of direct-benefits estoppel does not apply, and it cannot be compelled to arbitration. Here, StrucSure offered proof of an arbitration provision in the Limited Warranty. It is undisputed 2RH did notsign the Limited Warranty; however, nonsignatories may be bound to an arbitration clause in accordance with general rules of state contract law, agency law, or equity. Louisiana-Pacific Corp. , 2023 WL 3000579, at *3. The equitable doctrine of direct-benefits estoppel applies to parties–8– who seek to derive a direct benefit from a contract with an arbitration agreement. Id. If the non-signatory’s claims (and thus the defendant’s liability) arise solely from the contract or must be determined by re ference to it, or if the non-signatory deliberately seeks and obtains direct and substantial benefits from the contract containing the arbitration clause, irrespect ive of whether the non-signatory’s claims are based on the contract, then dir ect-benefits estoppel may apply. Id. Estoppel “prevents a party from insisting upon his stri ct legal rights when it would be unjust to allow him to enforce them.” In re Weekley Homes, L.P. , 180 S.W.3d at 133 (internal quotation omitted).
In Jody James Farms, JV v. Altman Group, Inc. , 547 S.W.3d 624 (Tex. 2018), the supreme court explained: Simply put, a person cannot have his contract and defeat it too. When a claim depends on the contract ’s existence and cannot stand independently—that is, the alleged liability arises solely from the contract or must be determined by reference to it—equity prevents a person from avoiding the arbitration clause that was part of that agreement. But when the substanc e of the claim arises from general obligations imposed by state law, including statutes, torts and other common law duties, or federal law, direct-benefits estoppel is not implicated even if the claim refers to or relates to the contract or would not have arisen “but for” the contract’s existence. Id. at 637 (internal citations, quot ations, and footnotes omitted); Louisiana-Pacific Corp. , 2023 WL 3000579, at *5. In order to be compelled to arbitrate under an agreement to which it was not a party, the non-signatory must be “seeking the benefits” of the contract by s eeking to enforce its terms. In re Merrill Lynch, Pierce,–9– Fenner & Smith, Inc. , 195 S.W.3d 807, 816 (Tex . App.—Dallas 2006, orig. proceeding). Although StrucSure argues it sought to compel arbitration because 2RH sought to enforce the Limited Warranty, we disagree. Whether a claim seeks the direct benefit from a contract containing an arbitration clause turns on the substance of the claim, not artful pleading. G.T. Leach Builders, LLC v. Sapphire V.P., LP , 458 S.W.3d 502, 527 (Tex. 2015). The claim must depend on the existence of the contract and be unable to stand i ndependently without the contract. Id. at 528. Here, 2RH’s third-party petition indicat es that its breach of contract claim against StrucSure is based on StrucSure’ s alleged breach to provide the Limited Warranty, not a breach of any terms of th e Limited Warranty itself. 2RH alleged “[t]he Agreement constitutes a valid and enforceable wr itten contract between 2RH and StrucSure for StrucSure to provide th e Warranty for the Property.” The thirdparty petition separately defined the “W arranty” and the “Agreement.” Although 2RH stated “StrucSure failed to honor the Warranty,” it emphasized that “conduct constitutes a breach of their contractual ob ligations under the Agreement to provide the Warranty for the Property,” not that St rucSure failed to honor the terms of the Limited Warranty. Further, although 2RH’s pleading did not specifically state it sought recovery of the $3,412.50 purchase price of the Limited Warranty, 2RH explained that the purchase price was the only damages it sought to recover. It stated, “We have not pleaded and we have not sought the damages for the alleged–10– issues with the house. . . . We have not sought from StrucSure the totality of the damages that plaintiffs are seeking in this case.” 2RH has not “artfully” pled around the Limited Warranty in an attempt to avoid its arbitration clause. It is not su ing StrucSure for breach of its obligations under the Limited Warranty, and therefore, is not seeking the benefits of the Limited Warranty. See Carr v. Main Carr Dev., LLC , 337 S.W.3d 489, 497 (Tex. App.— Dallas 2011, pet. denied) (explaining a nonsigna tory plaintiff seeking the benefits of a contract is estopped from simultaneous ly attempting to avoid its burdens); see also Louisiana-Pacific Corp. , 2023 WL 3000579, at *5. 2RH’s breach of contract claim does not stand on the Limited Warranty’ s existence, but rather can stand independently. And although 2RH’s breach of contract claim may “relate to” the Limited Warranty, it “arises out of and dir ectly seeks the benefits of a separate alleged agreement” betw een the parties. See, e.g. , Sapphire , 458 S.W.3d at 529. As explained at the hearing, 2RH was not arguing StrucSure breached the Limited Warranty, but rather that “[StrucSure] ne ver even provided what we purchased via the warranty.” Under these circumstances, direct-benefits estoppel did not compel arbitration of 2RH’s breach of contract claim as a non-signatory to the Limited Warranty; therefore, the trial court di d not err by denying StrucSure’s motion to compel arbitration of this claim. We next consider 2RH’s fraud by nondis closure claim. In its third-party petition, 2RH asserted the Sessa s’ claims related to StrucS ure’s refusal to honor its–11– obligations under the Limited Warranty becau se the Limited Warranty did not cover the home. 2RH argued if that was true, th en StrucSure falsely represented to 2RH the coverage of the Limite d Warranty and conc ealed from or failed to disclose certain facts regarding the Limited Warranty. StrucSure argues the “allegation ofnondisclosure or fraudulent nondisclosure is based upon refe rencing the exclusions and limitations in the Limited Warranty. Without asserting these references there is no claim for nondisclosure or fraudulent non-disclosure.” Again, StrucSure misses the mark. 2RH’s fraud claim is not based on any of the exclusions or li mitations that might apply to the Limited Warranty. Instead, the issue is whether the Limited Warranty exists and to what extent 2RH may be entitled to damages for paying for a Limited Warranty that did not cover what 2RH allegedly bargai ned for on the Sessas’ behalf. The trial court explained it at the hearing as follows: [I]n your estimation, [it] is not c onsistent with the direct-benefits analysis that is no - - 2RH is not seek ing a direct benefit in that instance from the contract, but rather seeki ng damages based on that there was no contract should the jury find that there was fraud in the representation that there would be a warranty and there in fact wasn’t a warranty, the very definition of that is that you’re not relying on the existence of the warranty but rather the opposite[.] Like the trial court, we are not convin ced 2RH “would have no claims had the agreement containing the arbitrati on provision not been signed.” See Carr , 337 S.W.3d at 499. Fraud by non-disclosure, a subc ategory of fraud, occurs when a party has a duty to disclose certain inform ation and fails to disclose it. Bombardier–12– Aerospace Corp. v. SPEP Aircraft Holdings, LLC , 572 S.W.3d 213, 219 (Tex. 2019). 2RH’s fraud claim relies on StrucSure’s a lleged independent duty to disclose whether the Limited Warranty would or would not cover the home in light of the change in builder, which 2RH disclosed prior to StrucSure issuing the Limited Warranty. Thus, StrucSure’s potential liability does not depend on the Limited Warranty’s existence, as 2RH is not seeking to enforce any of its terms, but instead stands independently from it. See, e.g , Jody James , 547 S.W.3d at 637; see also
Carr , 337 S.W.3d at 498. And wh ile we acknowledge 2RH’s claim may “relate” to the Limited Warranty, a non-signatory cannot be compelled to arb itrate when claims merely “touch matters” covered by a contract. Carr , 337 S.W.3d at 498. Accordingly, the trial court did not err by denying StrucSure’s motion to compel arbitration of 2RH’s fraud claim. We overrule StrucSure’s first issue. Agency In its second issue, StrucSure argues th e trial court erred by denying its motion to compel arbitration because 2RH acted as Homestead’s agent in procuring the Limited Warranty and Homestea d is a defined party to th e Limited Warranty. 2RH responds StrucSure provided no evidence suppor ting its agency theo ry. We agree. Texas has recognized agency as one th eory, among others not relevant here, in which arbitration by non-si gnatories may be required. Jody James , 547 S.W.3d at 633; McGaffey v. Carolina Props., LLC , No. 05-21-00985-CV, 2022 WL 16959265, at *1 (Tex. App.—D allas Nov. 16, 2022, no pet. ) (mem. op.). Because–13– an agency relationship cannot be presumed , the party who alleges agency has the burden of proving it with evidence. Coleman v. Klockner & Co. AG , 180 S.W.3d 577, 588 (Tex. App.—Houston [14th Dist.] 2005, no pet.). An agent is a person authorized to transact business for a principal and is subject to the principal’s control. Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C. , 336 S.W.3d 764, 782–83 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Authorization to act and c ontrol of the action are the two essential elements of agency. Id. Authority to act may be actual or apparent. Gaines v. Kelly , 235 S.W.3d 179, 182 (Tex. 2007). Apparent ag ency, also called apparent authority, is based on the concept of estoppel a nd imposes liability when the principal’s conduct should equitably prevent a person fro m denying the existe nce of an agency relationship. Baptist Mem’l Hosp. Sys. v. Sampson , 969 S.W.2d 945, 947 & n.2 (Tex. 1998). In determining whether an ag ent has apparent authority, “only the conduct of the principal is re levant,” and we examine the reasonableness of the third party’s assumption about authority. Sunergon Oil, Gas & Mining Grp., Inc. v. Cuen , No. 01-19-00998-CV, 2021 WL 3775589, at *5 (Tex. App.—Houston [1st Dist.] Aug. 26, 2021, no pet. ) (mem. op.). The question of whether an agency relations hip exists is usually a fact issue. Jarvis v. K&E Re One, LLC , 390 S.W.3d 631, 639 (Tex . App.—Dallas 2012, no pet.). Because StrucSure di d not request findings of fact and conclusions of law and the trial court did not issue any, we pres ume the trial court made all the necessary–14– findings to support its ruling and we construe the record in the light most favorable to the trial court’s ruling. J.M. Davidson, Inc. , 128 S.W.3d at 233; Holt Atherton Indus., Inc. , 835 S.W.2d at 83. StrucSure argued that 2RH “transacted and managed” the issuance of the Limited Warranty on Homestead’s behalf and, therefore, 2RH should be required to arbitrate because 2RH hired Homestead to complete construction of the home and was “instrumental” in obtaining the Li mited Warranty. StrucSure relied on the following evidence to support its agency theory: (1) the Construction Completion Agreement between 2RH and Homestead, (2 ) the Warranty Deed, (3) the Limited Warranty application, and (4) an email from Chris An aya, 2RH’s counsel. We consider each document in turn. Johnson, on behalf of Homestead, signed the Construction Completion Agreement in his capacity as “contractor ” and Ruiz signed on behalf of 2RH as “owner.” Nothing within the document indi cates either party signed as principal and agent of the other. Ruiz signed the Warrant y Deed in his capacity as 2RH’s president and owner, not as an agen t of Homestead. Further, the Warranty Deed does not reference StrucSure, Homestead, or the Li mited Warranty, but instead is simply the document transferring the home from 2RH, as owner, to the Sessas, as purchaser. The Limited Warranty application is sign ed by the Sessas as the home’s purchaser, and although Homestead is listed as the “member name” under “Builder & Warranty Information,” the application is not signe d by Homestead. To the extent StrucSure–15– argues an agency relationship was created because Homestead is listed on the application and identified as the “builder,” we reject its argument. 2RH procured the Limited Warranty on behalf of the Sessa s, not Homestead. This conclusion is further supported by the email from Anaya to a StrucSure representative in which he stated, “2RH was the developer of th e property and purchased the Home Warranty for the benefit of the Owners. ” Nothing in the email i ndicates 2RH acted on behalf of Homestead. Construing the record in the light most favorable to the trial court’s ruling and deferring to its implied finding of facts, th e record contains no evidence of either actual or apparent authority creating an agency relationshi p between 2RH and Homestead. There is no evidence establishi ng a direct principal-agent relationship between 2RH and Homestead or that 2RH had any apparent authority to act on behalf of Homestead or that Homestead controlled any of 2RH’s actions. Accordingly, the trial court did not err by denying StrucSure’ s motion to compel arbitration based on
agency. Even if we agreed with StrucSure’s agency argument, which we do not, our analysis would not change. Whether it is 2RH or Homestead asserting a claim for failure to provide a home warranty, this di spute does not fall within the scope of the limited warranty’s arbitration provision. StrucSure’s second issue is overruled.–16– Conclusion We affirm the trial court’s order denying StrucSure’s motion to compel arbitration.

221214F.P05 /Erin A Nowell / ERIN A. NOWELL JUSTICE–17– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

STRUCSURE HOME WARRANTY, LLC, Appellant
No. 05-22-01214-CV V. 2RH BROTHERS PROPERTIES, LLC, Appellee On Appeal from the 116th Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-21-13529. Opinion delivered by Justice Nowell. Justices Goldstein and Breedlove participating.
In accordance with this Court’s opinion of this date, the trial court’s order denying appellant STRUCS URE HOME WARRANTY, LL C’s motion to compel arbitration is AFFIRMED

. It is ORDERED that appellee 2RH BROT HERS PROPERTIES, LLC, recover its costs of this appeal from appellant STRUCSURE HOME WARRANTY, LLC.
Judgment entered July 17, 2023.