IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20072

Summary Calendar

JOY A. ZINANTE,

Plaintiff - Appellee

v.

DRIVE ELECTRIC, L.L.C.,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:13-CV-1820

Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Following a house fire allegedly caused by a defective electric golf cart, 

the home owner, Plaintiff-Appellee Joy Zinante, brought this action against

the seller of the golf cart, Defendant-Appellant Drive Electric, L.L.C., in Texas 

state court. Drive Electric successfully removed the case to federal court. 

Contending that Zinante is bound by an arbitration agreement provision in the 

golf cart sales contract, Drive Electric moved to compel arbitration. The 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 16, 2014

Lyle W. Cayce

Clerk

 

 Case: 14-20072 Document: 00512770841 Page: 1 Date Filed: 09/16/2014
No. 14-20072

district court denied Drive Electric’s motion to compel and Drive Electric 

appealed. For the following reasons, we AFFIRM.

This court reviews a district court’s ruling on a motion to compel 

arbitration de novo. JP Morgan Chase & Co. v. Conegie ex rel. Lee, 492 F.3d 

596, 598 (5th Cir. 2007). The court must compel the parties to arbitrate the 

dispute if: (1) the parties agreed to arbitrate the dispute, and (2) no “federal 

statute or policy makes the claims nonarbitrable.” Id. Because we find that 

the parties did not agree to arbitrate this or any dispute between them, we do 

not reach the issue of whether federal law or policy makes the claims 

nonarbitrable.

“Generally, principles of state contract law govern the question of 

whether the parties formed a valid agreement to arbitrate.” Id. Here, both 

parties agree that Texas contract law controls. Under Texas law, when a party 

seeks to compel arbitration, that party must establish that a valid arbitration 

agreement exists. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex. 2001). 

Therefore, Drive Electric must show that Zinante and Drive Electric entered 

into a valid arbitration agreement. 

Zinante’s husband, Mark Zinante (“Mark”), who is not a party in this 

action, purchased the golf cart at issue from Drive Electric over the internet. 

Drive Electric alleges that, in the course of this transaction, Mark 

electronically consented to Drive Electric’s “Terms & Conditions” of sale, 

including a provision entitled “Arbitration” that states “any and all claims or 

disputes arising from or relating to this agreement shall be submitted to 

binding arbitration before the American Arbitration Association in the State 

of Arizona.”

Even if we assume that the arbitration clause in those Terms & 

Conditions constituted an enforceable arbitration agreement against Mark,

who purchased the cart online, Drive Electric does not allege that Zinante 

2

 Case: 14-20072 Document: 00512770841 Page: 2 Date Filed: 09/16/2014
No. 14-20072

herself agreed to arbitrate. Rather, Drive Electric argues that Zinante is 

bound to the arbitration agreement between her husband Mark and Drive 

Electric under either of two theories—the equitable doctrine of estoppel and 

the third-party beneficiary doctrine.

Drive Electric first argues that, because Zinante is suing on the 

underlying contract, equity estops her from arguing that any terms of the 

contract, including the arbitration clause, do not apply to her. See FirstMerit 

Bank, N.A., 52 S.W.3d at 755-56. Under the equitable doctrine of estoppel, “a 

litigant who sues based on a contract subjects him or herself to the contract’s 

terms.” Id. at 755. Zinante is suing under theories of negligence1 and gross 

negligence,2 and, thus, a sales contract between Mark and Drive Electric are 

not relevant to this lawsuit. Cf. Nationwide of Bryan, Inc. v. Dyer, 969 S.W.2d 

518, 521 (Tex. App. 1998) (noting that a non-signatory spouse suing for claims 

related to a sales contract, breach of contract, breach of warranty, and 

violations of the Deceptive Trade Practices Act, derived her right to sue from 

the contract). Likewise, Zinante does not rely on or assert any terms of the 

contract in her complaint.3 Therefore, by asserting these claims she is not 

1 The Supreme Court of Texas has identified three elements for a negligence claim: 

“1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damages 

proximately resulting from the breach.” Greater Houston Transp. Co. v. Phillips, 801 S.W2d 

523, 525 (Tex. 1990). The legal duty element encompasses “risk, foreseeability, and likelihood 

of injury.” Id. Here, Zinante does not contend that the contract between Mark and Drive 

Electric created the legal duty that Drive Electric owes her. 

2 The Supreme Court of Texas has identified two elements for a gross negligence claim: 

(1) extreme risk; and (2) conduct with “conscious indifference to the rights, safety, or welfare 

of others” despite “actual, subjective awareness of the risk.” Mobile Oil Corp. v. Ellender, 968 

S.W.2d 917, 921 (Tex. 1998). Here, the sales contract between Mark and Drive Electric does 

not relate to either element of gross negligence.

3 In her original state court petition Zinante sued Drive Electric for negligence, gross 

negligence, violation of the Deceptive Trade Practices Act, and common law fraud. However, 

after Drive Electric removed the case to federal court and moved to compel arbitration under 

the arbitration clause, Zinante amended the complaint to remove the Deceptive Trade 

Practices Act and common law fraud causes of action, asserting only negligence and gross 

3

 

 Case: 14-20072 Document: 00512770841 Page: 3 Date Filed: 09/16/2014
No. 14-20072

subjecting herself to the terms of the contract and the doctrine of estoppel does 

not apply.

Despite the absence of any claims asserted under the contract, Drive 

Electric contends that pursuant to a variation of equitable estoppel—the

doctrine of “intertwined claims”—Zinante is suing on the contract. In re 

Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 193-94 (Tex. 2007); Cotton 

Commercial USA, Inc. v. Clear Creek Indep. Sch. Dist., 387 S.W.3d 99, 105 (Tex 

App. 2012). Under the intertwined claims doctrine, when a non-signatory

defendant has a “close relationship” with a signatory to a contract that contains

an arbitration agreement, a court can compel the non-signatory defendant to 

arbitrate disputes that are “intimately founded in and intertwined with the 

underlying contractual obligations.” Cotton Commercial USA, Inc., 387 S.W.3d 

at 105 (quotation omitted). The doctrine does not apply here because Zinante 

is a non-signatory plaintiff who is suing a party that alleges an arbitration 

agreement exists with her, a third-party. Moreover, as discussed, Zinante’s 

claims are neither derived from, nor intertwined with, the terms of the contract 

between Mark and Drive Electric so the doctrine of equitable estoppel does not 

bind her to the terms of the contract.

Drive Electric next argues that Zinante is bound to the terms of the 

contract, including the arbitration provision, as a third-party beneficiary to the 

negligence claims. If Zinante was suing for fraud and violations of the Deceptive Trade 

Practices Act, the question of whether she derived her right to sue from the contract may 

come out differently. See Nationwide of Bryan, Inc., 969 S.W.2d at 519, 521. But, the lawsuit 

before us does not include fraud or deceptive trade practices because Zinante amended her

complaint. See Hibernia Nat. Bank v. Carner, 997 F.2d 94, 101 (5th Cir. 1993) (“To the extent 

that [the plaintiff’s original pleading] did make a ‘judicial confession,’ that confession was 

amended away.”); see also West Run Student Housing Asscs., L.L.C. v. Huntington Nat. Bank, 

712 F.3d 165, 171-72 (3d Cir. 2013) (listing examples of recognition by this and other circuits 

that a judicial admission or concession in a pleading may be withdrawn by a subsequent 

amendment). Accordingly, none of Zinante’s claims derive from the contract and she has not 

subjected herself to the terms of the contract by asserting these claims.

4

 

 Case: 14-20072 Document: 00512770841 Page: 4 Date Filed: 09/16/2014
No. 14-20072

contract. A third-party beneficiary is “one for whose benefit the contract was 

made” and “not one who is benefited only incidentally by the performance of 

the contract.” MCI Telecomm. Corp. v. Texas Util. Elec. Co., 995 S.W.2d 647, 

651 (Tex. 1999). Texas law presumes that parties to an agreement “contracted 

for themselves unless it ‘clearly appears’ that they intended a third party to 

benefit from the contract.” Id. The contract must “clearly and fully spell[] out” 

third-party beneficiary status. Id. Third-party beneficiary status cannot be 

created by implication. Id.

Drive Electric offers no evidence that Mark intended for his spouse,

Zinante, to benefit from his purchase of the golf cart. Instead, Drive Electric 

contends that Zinante is bound to the sales contract as the wife of a signatory 

because the purchase of the golf cart benefits the community estate. Drive 

Electric points to no case law that supports finding third-party beneficiary 

status based solely on the basis of shared community property. 

Texas law does not confer third-party beneficiary status automatically

upon one spouse when the other spouse enters a sales contract. Compare In re 

Conseco Fin. Serv. Corp., 19 S.W.3d 562, 571 (Tex. App. 2000) (noting that a

non-signatory wife of a signatory to a mobile home sales contract that included 

an arbitration agreement is not bound to the agreement and, therefore, is not 

compelled to arbitrate her claims against the mobile home seller) with

Nationwide of Bryan, Inc., 969 S.W.2d at 520 (compelling a non-signatory wife

of a signatory to arbitrate breach of contract and related claims because she 

derived her standing to sue from the contract that contained the arbitration 

clause). Accordingly, the spousal relationship alone does not make Zinante a 

third-party beneficiary to the contract. Furthermore, as discussed, Zinante’s 

claims of negligence and gross negligence do not derive from or relate to the 

contract. Therefore, Drive Electric failed to establish that Zinante is bound to 

5

 Case: 14-20072 Document: 00512770841 Page: 5 Date Filed: 09/16/2014
No. 14-20072

the terms of the contract, including the arbitration agreement, as a third-party 

beneficiary.

In conclusion, Zinante is neither a third-party beneficiary of the 

underlying contract that contained the arbitration agreement, nor does the 

doctrine of equitable estoppel compel arbitration here. Therefore, the district 

court’s denial of Drive Electric’s motion to compel arbitration is AFFIRMED.

6

 Case: 14-20072 Document: 00512770841 Page: 6 Date Filed: 09/16/2014