IN THE

TENTH COURT OF APPEALS

No. 10-08-00315-CV

LDF CONSTRUCTION, INC., LYNN D. FOSTER, 

MARK W. TODD ARCHITECTS, INC. AND 

MARK W. TODD,

Appellants

v.

SAM BRYAN, CONNIE BRYAN, AND SAMMY 

R. BRYAN, DDS, P. A.,

Appellees

From the 278th District Court

Walker County, Texas

Trial Court No. 24,273

______________ 

No. 10-08-00348-CV

IN RE LDF CONSTRUCTION, INC. AND LYNN D. FOSTER

Original Proceeding

____________

10-08-00407-CV

IN RE MARK TODD AND MARK W. TODD ARCHITECTS

Original Proceeding
LDF Construction, Inc. v. Bryan Page 2

O P I N I O N

This is one of the last combinations of proceedings where a party has to pursue a 

mandamus proceeding if the Federal Arbitration Act (FAA) might be applicable and 

also pursue an interlocutory appeal if the Texas Arbitration Act (TAA) might be 

applicable. The invitation of the Texas Supreme Court has been acted upon. See Am. 

Std. v. Brownsville Indep. Sch. Dist. (In re D. Wilson Constr. Co.), 196 S.W.3d 774, 780 n.4 

(Tex. 2006) (“We again invite the Legislature, ‘[i]n the interests of promoting the policy 

considerations of rigorous and expedited enforcement of arbitration agreements, . . . to 

consider amending the Texas Act to permit interlocutory appeals of orders issued 

pursuant to the Federal Act.’” (citing Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 

(Tex. 1992)). Effective September 1, 2009, section 51.016 of the Civil Practice and 

Remedies Code was amended to allow an interlocutory appeal of an order denying a 

motion to compel arbitration under the FAA. See TEX. CIV. PRAC. & REM. CODE ANN. § 

51.016 (Vernon Supp. 2009). These proceedings, however, were filed before the 

effective date of the new statutory provision.

In these proceedings, the appellants/relators have had to do things the hard 

way—file both an appeal and petitions for a writ of mandamus. It has made the task for 

both the trial court and this Court more complex due to multiple issues and methods 

necessary to insure that the proper procedural vehicle was used to obtain review. 

Because in this instance we conclude that the FAA applies, we dismiss the interlocutory 

appeal, LDF Construction, Inc. v. Bryan, No. 10-08-00315-CV. We conditionally grant the 
LDF Construction, Inc. v. Bryan Page 3

petitions for writ of mandamus to compel arbitration filed by LDF Construction, Inc. 

and Lynn D. Foster (LDF) and Mark Todd and Mark Todd Architects (Todd).

A BRIEF HISTORY

Sam Bryan, an orthodontist, contracted with Joyce Matlack, a California resident 

who specialized in dental-related interior designs, to provide interior design services 

for a new office for Bryan. Bryan then contracted with Todd to develop a set of master 

and schematic plans to be designed according to the interior plans provided by 

Matlack. Three years later, LDF entered into an agreement with Bryan to build the new 

office. The construction of the office was to comply with the specifications and designs 

by Todd. Bryan’s contracts with LDF and Matlack contained arbitration provisions, but 

the contract between Bryan and Todd did not. 

When construction of the office did not go as expected, Bryan, his wife, and 

Sammy R. Bryan, DDS, P.A. (Bryan) sued LDF, Todd, and Matlack and Matlack/Van 

Every Design, Inc. (Matlack).1 Todd, Matlack, and LDF each moved to compel 

arbitration. The trial court initially granted Matlack’s motion to compel arbitration. 

However, that ruling was withdrawn at the hearing on Todd’s and LDF’s motions. The 

trial court ultimately denied Todd’s and LDF’s motions to compel arbitration but did 

not rule on Matlack’s motion. That motion remains pending in the trial court. LDF and 

Todd filed separate notices of appeal of the trial court’s decision and filed separate 

 

1 Bryan, in response to Todd’s and LDF’s petitions for writ of mandamus, conceded the validity of the 

Matlack arbitration provision but, nevertheless, sued Matlack along with Todd and LDF.
LDF Construction, Inc. v. Bryan Page 4

petitions for a writ of mandamus. Both notices of appeal were filed in one proceeding, 

TEX. R. APP. P. 12.2(c), whereas each mandamus was filed as a separate proceeding. 

GENERAL LAW OF ARBITRATION

The Texas statutes governing arbitration of disputes are found in Chapter 171 of 

the Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 

171.001-171.098 (Vernon 2005). The FAA, which applies to "any maritime transaction or 

a contract evidencing a transaction involving commerce," is found in title 9 of the 

United States Code. See 9 U.S.C. § 2.

In evaluating a motion to compel arbitration, a court must first determine 

whether a valid arbitration agreement exists, and then whether the agreement 

encompasses the claims raised. Am. Std. v. Brownsville Indep. Sch. Dist. (In re D. Wilson 

Constr. Co.), 196 S.W.3d 774, 781 (Tex. 2006); see In re Dillard Dep't Stores, Inc., 186 S.W.3d 

514, 515 (Tex. 2006) (per curiam). Whether a valid arbitration agreement exists is a legal 

question subject to de novo review. Id. Although the Texas Supreme Court has 

repeatedly expressed a strong presumption favoring arbitration, the presumption arises 

only after the party seeking to compel arbitration proves that a valid arbitration 

agreement exists. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003) 

(emphasis added). Courts must resolve any doubts about an arbitration agreement's 

scope in favor of arbitration. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex. 2001). 

Arbitration agreements are interpreted under traditional contract principles. J.M. 

Davidson, 128 S.W.3d at 227. If the trial court finds a valid agreement, the burden shifts 

to the party opposing arbitration to raise an affirmative defense to enforcing arbitration. 
LDF Construction, Inc. v. Bryan Page 5

Id. Absent a defense to enforcing the arbitration agreement, the trial court has no 

discretion but to compel arbitration and stay its own proceedings. In re J.D. Edwards 

World Solutions Co., 87 S.W.3d 546, 549 (Tex. 2002) (per curiam).

The types of issues raised as a defense determine whether the arbitrator or the 

trial court resolves those issues. A court may determine a specific challenge to the 

validity of the arbitration agreement but a challenge to the validity of the contract as a 

whole, and not specifically to the arbitration agreement, must go to the arbitrator. 

Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 448-449, 126 S. Ct. 1204, 163 L. Ed. 

2d 1038 (2006); In re Labatt Food Serv., L.P., 279 S.W.3d 640, 647-648 (Tex. 2009). See

Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-404, 87 S. Ct. 1801, 18 L. 

Ed. 2d 1270 (1967) (claim of fraud in the inducement of arbitration clause itself may be 

adjudicated by court, but court may not consider claim of fraud in the inducement of 

the contract generally); In re Houston Pipe Line Co., No. 08-0800, 2009 Tex. LEXIS 468, *4, 

52 Tex. Sup. J. 1098 (Tex. July 3, 2009) (“When a party disputes the scope of an 

arbitration provision or raises a defense to the provision, the trial court, not the 

arbitrator, must decide the issues.”); In re Morgan Stanley & Co., 293 S.W.3d 182, 185 

(Tex. 2009) (“[D]efenses attacking the validity of a contract as a whole, and not 

specifically aimed at the agreement to arbitrate, are for the arbitrator, not the court.”); 

Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 56 (Tex. 2008) ("[T]he party opposing 

arbitration must show that the fraud relates to the arbitration clause specifically, not to 

the broader contract in which it appears."); Perry Homes v. Cull, 258 S.W.3d 580, 589 

(Tex. 2008) ("[A]rbitrators generally must decide defenses that apply to the whole 
LDF Construction, Inc. v. Bryan Page 6

contract, while courts decide defenses relating solely to the arbitration clause."); In re 

Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 190 & n.12 (Tex. 2007) (noting that a defense 

relating to the parties' entire contract rather than the arbitration clause alone is a 

question for the arbitrators); In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex. 2001) 

(noting that the defenses of unconscionability, duress, fraudulent inducement, and 

revocation must specifically relate to the arbitration part of a contract and not the 

contract as a whole if they are to defeat arbitration, and that validity of an arbitration 

provision is a separate issue from validity of the whole contract). Further, questions 

that "grow out of the dispute and bear on its final disposition," for example, whether 

conditions precedent have been met, notice, time limits, laches, and estoppel, are 

procedural arbitrability issues that are reserved for resolution by the arbitrator. Howsam 

v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84-85, 123 S. Ct. 588, 154 L. Ed. 2d 491 (2002). 

In contrast, the trial judge decides questions of substantive arbitrability, which 

implicate "gateway" issues, for example, whether a particular agreement binds the 

parties to arbitrate. Id. at 85. 

THE TEXAS ANOMALY OF TAA VS FAA

The TAA and FAA provide alternative procedural vehicles for relief. In re Educ. 

Mgmt. Corp., 14 S.W.3d 418, 425 (Tex. App.—Houston [14th Dist.] 2000, orig. 

proceeding). A trial court's order denying a motion to compel arbitration may be 

reviewed by interlocutory appeal when the motion is brought under the TAA. TEX. CIV.

PRAC. & REM. CODE ANN. § 171.098(a)(1) (Vernon 2005). Until just recently and when 

the orders at issue in these proceedings were signed, mandamus was the appropriate 
LDF Construction, Inc. v. Bryan Page 7

vehicle to challenge an order denying arbitration under the FAA. In re Bank One, N.A., 

216 S.W.3d 825, 826 (Tex. 2007) (orig. proceeding) (per curiam); EZ Pawn Corp. v. 

Mancias, 934 S.W.2d 87, 91 (Tex. 1996) (per curiam). But see TEX. CIV. PRAC. & REM. CODE 

ANN. § 51.016 (Vernon Supp. 2009). Prior to September 1, 2009, litigants like LDF and 

Todd who alleged entitlement to arbitration under the FAA, and in the alternative, 

under the TAA, were burdened with the need to pursue parallel proceedings—an 

interlocutory appeal of the trial court's denial under the TAA, and a writ of mandamus 

from the denial under the FAA. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 

1992).

WHICH ARBITRATION ACT APPLIES?

If the arbitration clause is enforceable under the FAA, an analysis of 

enforceability under the TAA is unnecessary. See In re D. Wilson Constr. Co., 196 S.W.3d 

774, 783-84 (Tex. 2006). Accordingly, we first review the petition for writ of mandamus 

to assess enforceability of the arbitration provision under the FAA.

The FAA applies to "any maritime transaction or a contract evidencing a 

transaction involving commerce." See 9 U.S.C. § 2. "'[C]ommerce' . . . means commerce 

among the several States." 9 U.S.C. § 1. Interstate commerce is not limited to the 

interstate shipment of goods, but includes all contracts "relating to" interstate 

commerce. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 754 (Tex. 2001). The FAA 

"extends to any contract affecting commerce, as far as the Commerce Clause of the 

United States Constitution will reach." L & L Kempwood Assocs., L.P. v. Omega Builders, 

Inc. (In re L & L Kempwood Assocs., L.P.), 9 S.W.3d 125, 127 (Tex. 1999) (per curiam). 
LDF Construction, Inc. v. Bryan Page 8

Bryan alleged in his first amended petition that Matlack was a resident of 

California. He also alleged that the company, Matlack/Van Every Design, Inc. was a 

California company. Bryan alleged that both Matlack and the company conducted 

business in Texas but did not have a principle office in Texas and did not have a 

registered agent listed with the Secretary of State. Service of process was to be 

effectuated by serving Matlack at her business address in Santa Cruz, California. 

Bryan further alleged that in May of 2004 he met Matlack while attending an 

orthodontist meeting in Florida. Matlack informed Bryan that she was an interior 

designer, specializing in the design of dental offices. Matlack eventually traveled to 

Texas to meet with Bryan to discuss designing a new office for Bryan in Huntsville, 

Texas. Bryan approved a contract submitted by Matlack. The letterhead of the contract, 

which was admitted into evidence at the hearing on LDF’s and Todd’s motions to 

compel arbitration, indicated that Matlack’s business address was Santa Cruz, 

California. According to Bryan, Matlack then sent design plans to Bryan for his 

approval and eventually, a plan was approved.

There was no other evidence about the nature of the contract or services or 

source of supplies. This is, however, a commercial construction contract, and there was 

no effort to show that the materials were of a uniquely local origin. Even if the 

materials were of such a nature, there is still an impact on interstate commerce. See The 

Daniel Ball, 77 U.S. 557, 565, 19 L. Ed. 999, 10 Wall. 557 (1870) (although goods loaded 

and unloaded within the same state, interstate commerce was impacted because some 
LDF Construction, Inc. v. Bryan Page 9

goods were destined to other states). Further, Bryan does not contend that the FAA 

does not apply. Accordingly, we hold that the FAA, not the TAA, applies.

LDF AND FOSTER

In evaluating LDF’s motion to compel arbitration, we first determine whether 

LDF proved a valid arbitration agreement exists. An agreement to arbitrate is valid 

except on grounds as exist at law or in equity to revoke any contract. 9 U.S.C. § 2; see In 

re Morgan Stanley & Co., 293 S.W.3d 182, 184 (Tex. 2009). LDF introduced its contract 

and arbitration provision into evidence at the hearing on its motion to compel 

arbitration. The provision states that “[a]ny claim arising out of or related to the 

Contract...is subject to arbitration.” Bryan’s only dispute with the validity of the 

provision, both to the trial court and on appeal, is that the entire contract was procured 

by fraud. As discussed more fully below, this is not a specific challenge to the validity 

of the arbitration provision but is a challenge to the validity of the contract as a whole 

and such is left to resolution by the arbitrator. See Buckeye Check Cashing, Inc. v. 

Cardegna, 546 U.S. 440, 444-446, 126 S. Ct. 1204, 163 L. Ed. 2d 1038 (2006). There was no 

challenge to the validity solely of the arbitration provision in the contract, and LDF thus 

satisfied the first step. 

Next, we determine whether the claims raised by Bryan fall within the scope of 

the arbitration provision. When addressing this issue, we focus on the factual 

allegations involved in the dispute and not on the legal causes of action raised by the 

parties. In re Conseco Fin. Servicing Corp., 19 S.W.3d 562, 568 (Tex. App.—Waco 2000, 

orig. proceeding). Any doubts as to whether the dispute falls within the scope of the 
LDF Construction, Inc. v. Bryan Page 10

arbitration agreement should be resolved in favor of arbitration. Id. (citing Mastrobuono 

v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62 & n.8, 115 S. Ct. 1212, 131 L. Ed. 2d 76 

(1995)).

Bryan pled many causes of action against LDF and Foster: breach of contract, 

breach of implied warranty and workmanlike performance, negligence, and various 

claims of fraud. After securing designs and plans from Matlack and Todd, Bryan 

contracted with LDF to construct a new office. The contract included Todd’s and 

Matlack’s work. LDF was to finish the office within 210 days and “execute the Work 

described in the Contract Documents.” The contract also listed Todd as the architect 

overseeing the project. Bryan alleged LDF knew the provisions in the contract relating 

to the architect would not be followed. 

Construction of the office did not go well. There were problems with the 

foundation, patient chairs were not centered with the windows, electrical panels and 

conduit had to be moved, and weeks of inactivity occurred at the jobsite. When it came

time to install the sheetrock, Bryan began to question the ceiling heights. Bryan alleges 

he received either unintelligible answers or no answer at all from LDF, Matlack, and 

Todd. LDF, Matlack, and Todd eventually acknowledged that the ceiling heights could 

be altered but for an additional cost.

Bryan alleged that LDF, Todd, and Matlack were aware of the problems with the 

ceiling height and discussed among themselves ways to “cover-up” and fix the 

problems, rather than informing Bryan of the problems. Bryan also alleged that LDF, 

Todd, and Matlack held themselves out to be professionals who where competent and 
LDF Construction, Inc. v. Bryan Page 11

experienced. Bryan claimed that LDF, Todd, and Matlack contracted with him “to 

provide services that would facilitate, correspond, and accentuate the endeavors 

contractually and voluntarily undertaken by the other defendants” according to a 

specific scheme and design approved by Bryan. 

Bryan further alleged that LDF, Todd, and Matlack failed with regard to 

workmanship and integrity of the work undertaken by them. It was alleged that Todd 

and Matlack prepared inaccurate, incompatible plans while LDF, who had a duty to 

ensure that construction was conducted in accordance with the plans, did not inform 

Bryan of the problems with the plans upon LDF’s discovery of the problems. 

Furthermore, Bryan alleged, LDF performed services in an unacceptable and 

unworkmanlike manner in that among other things, deviations from the plans were 

made without informing Bryan.

Bryan added a claim to his first amended petition regarding a bill from a subcontractor for carpentry work. Rough carpentry work was completed in October of 

2007. According to Bryan, copies of Applications and Certificates for Payment, which 

were sworn to by LDF for the months of September and October, indicated that no 

money was owed regarding the carpentry. Bryan claimed that upon closer inspection, 

the certificates were inaccurate and that LDF knew they were inaccurate. Bryan alleged 

that LDF provided the bill to the subcontractor who signed it and sent it on to Bryan. 

Bryan further alleged that LDF used this bill to cause Bryan financial injury, mental 

anguish, and emotional distress. 
LDF Construction, Inc. v. Bryan Page 12

All of Bryan’s claims center on the construction of Bryan’s office and the failures 

of the office’s construction to comply with Bryan’s contract. The language of the 

arbitration provision is very broad and encompasses any claim “arising out of or related 

to” the contract. There is no claim by Bryan that does not have its origin outside the 

relationship created by the contract.2 Even Bryan’s tort claims arise from the 

relationship around the contract. Likewise, Bryan’s claims in his personal capacity 

(non-signatory) against Foster in his individual capacity (non-signatory) all arise out of 

that same relationship, the one created by the contract, and but for the contract would 

not exist. In re Conseco Fin. Servicing Corp., 19 S.W.3d 562, 570 (Tex. App.—Waco 2000, 

orig. proceeding). Finally, we note that there is no suggestion that Foster’s actions were 

in any capacity other than as an agent for LDF.

Accordingly, we hold that all claims against LDF, including those that are made 

against Foster, are within the scope of the arbitration agreement.

Defenses

Having determined that LDF proved the existence of an arbitration agreement 

between the parties and that the claims asserted by Bryan are within the scope of the 

arbitration agreement, we now turn to the defenses to arbitration raised by Bryan and 

which appear to have been relied upon by the trial court. The primary defense is that 

the construction agreement, including the arbitration agreement, was induced by fraud. 

 

2 The only claim Bryan contends was outside the scope of the arbitration provision is his claim pursuant 

to the fraudulent lien statute. TEX. CIV. PRAC. & REM. CODE § 12.002 (Vernon Supp. 2009). Nevertheless, 

this claim also falls within the scope of the arbitration provision because, but for the contract with LDF, 

the subcontractor would not have incurred costs of performing carpentry work for which he sought 

payment from Bryan. See In re Conseco Fin. Servicing Corp., 19 S.W.3d 562, 570 (Tex. App.—Waco 2000, 

orig. proceeding). 
LDF Construction, Inc. v. Bryan Page 13

This is a defense to the entire contract. This is not just a defense to the mandatory 

arbitration provision. A plaintiff cannot sue for the benefits on the contract, in essence 

sue for breach of contact, and sue on only part of the contract. See In re FirstMerit Bank, 

N.A., 52 S.W.3d 749, 755 (Tex. 2001) (“[A] litigant who sues based on a contract subjects 

him or herself to the contract's terms.”). Having brought the suit as a breach of contract 

claim, a plaintiff cannot excise a single paragraph from the contract, the arbitration 

clause, and reject it. See In re Weekley Homes, L.P., 180 S.W.3d 127, 133 (Tex. 2005) 

(“Having obtained these substantial actions from Weekley by demanding compliance 

with the provisions of the contract, Von Bergen cannot equitably object to the 

arbitration clause attached to them.”). Bryan is not asserting that the 

fraud/unconsionablilty claim goes to only the arbitration clause. Since the claim is 

asserted to the contract as a whole, it is a claim that is decided by the arbitrator, rather 

than the court. See In re Morgan Stanley & Co., 293 S.W.3d 182, 185 (Tex. 2009).

Bryan also asserts that LDF cannot avail itself of the arbitration provision 

because of conditions precedent to enforcement that were not, and cannot now be, 

performed. The provision states that prior to arbitration, the parties will attempt to 

resolve the dispute, first through the architect and then through nonbinding mediation.3 

Bryan asserts that because these provisions are conditions precedent to the institution of 

litigation and cannot be complied with, the arbitration provision is negated. We 

disagree. There is no indication in the provision that the parties intended to dispense 

 

3 We note that while these proceedings were pending, we abated the proceedings for mediation. A 

settlement was not reached.
LDF Construction, Inc. v. Bryan Page 14

with arbitration if the other methods of resolution did not occur first. In re U.S. Home 

Corp., 236 S.W.3d 761, 764 (Tex. 2007). Further, Bryan cannot unilaterally skip the 

efforts to resolve the dispute by other methods by skipping directly to litigation and 

thereby avoid the arbitration provision. Cf. Global Evangelism Educ. Ministries, Inc. v. 

Caddell, No. 04-08-00686-CV, 2009 Tex. App. LEXIS 1085, *5-6 (Tex. App.—San Antonio 

Feb. 18, 2009, no pet.) (mem. op.) (party that first filed suit rather than seeking 

mediation cannot rely on the failure of conditions precedent to evade arbitration). To 

hold otherwise would allow the provision to be avoided simply because one party 

chose to go directly to litigation. The agreement provided for three levels of dispute 

resolution before enforcement in the courts. Because this is an issue to be decided by 

the arbitrator,4 the arbitrator may decide that the methods of dispute resolution skipped 

by Bryan need to be utilized before proceeding to arbitration; or the arbitrator may 

decide that at this point the other methods of dispute resolution would be ineffective 

and, therefore, proceed with the resolution of the disputes by arbitration.

Bryan also asserts that LDF cannot avail itself of the arbitration provision in 

Matlack’s contract. In this regard, Bryan argues that because LDF comes to court with 

unclean hands, LDF cannot use a mandamus proceeding to compel arbitration as a nonsignatory under another party’s agreement. Because of our holdings above, we are not 

utilizing the arbitration provision in Matlack’s agreement but rather we are using the 

provision in LDF’s own contract to compel arbitration of all claims Bryan has asserted 

against all the LDF related defendants.

 

4 Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84-85, 123 S. Ct. 588, 154 L. Ed. 2d 491 (2002).
LDF Construction, Inc. v. Bryan Page 15

Accordingly, because Bryan has failed to prove any valid reason why their 

claims against LDF should not be referred to binding arbitration, we conditionally grant 

LDF’s petition for writ of mandamus. 

TODD

We now turn to the trial court’s denial of Todd’s motion to also refer Bryan’s 

claims against Todd to arbitration. Todd had a written contract with Bryan but that 

contract did not have an arbitration provision in it. Thus, Todd is a non-signatory to 

any arbitration agreement. Bryan asserts that the trial court, having reviewed the 

evidence, did not abuse its discretion in refusing to refer the claims raised against Todd 

to arbitration. We disagree.

As a rule, arbitration of a claim cannot be compelled unless it falls within the 

scope of a valid arbitration agreement; but sometimes a person who is not a party to the 

agreement can compel arbitration with one who is, and vice versa. Meyer v. WMCO-GP, 

LLC, 211 S.W.3d 302, 305 (Tex. 2006). Non-signatories to an agreement subject to the 

FAA may be bound to an arbitration clause when rules of law or equity would bind 

them to the contract generally. In re Labatt Food Serv., 279 S.W.3d at 643; In re Weekley 

Homes, 180 S.W.3d at 131. Several rules of law and equity, such as the principles of 

equitable estoppel and agency, may be used to compel arbitration. See In re Labatt Food 

Serv., 279 S.W.3d at 644; see also Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524, 

527 (5th Cir. 2000). 

Equitable estoppel applies to allow a non-signatory to compel arbitration when 

the signatory to a written agreement containing an arbitration clause must rely on the 
LDF Construction, Inc. v. Bryan Page 16

terms of the written agreement in asserting its claims against the non-signatory. Grigson 

v. Creative Artists Agency, L.L.C., 210 F.3d 524 (5th Cir. Tex. 2000). When a signatory's 

claims against a non-signatory make reference to or presume the existence of the 

written agreement, the signatory's claims arise out of and relate directly to the written 

agreement, and arbitration is appropriate. Id.; Meyer v. WMCO-GP, LLC, 211 S.W.3d 

302, 307 (Tex. 2006). The Fifth Circuit refers to this as the “intertwined-claims test.” 

Grigson, 210 F.3d at 527. The Texas Supreme Court has referred to this principal as 

“direct benefits” estoppel. See Meyer, 211 S.W.3d at 305 (“a person who seeks by his 

claim ‘to derive a direct benefit from the contract containing the arbitration provision’ 

may be equitably estopped from refusing arbitration.” (emphasis added)). 

Todd asserts that Bryan is equitably estopped from preventing arbitration of the 

claims asserted against them. As with LDF, Bryan alleged various claims against Todd: 

breach of contract, breach of implied warranty and workmanlike performance, 

negligence, DTPA, and various claims of fraud. According to the first amended 

petition, Bryan began searching for an architect in 2004 to design his office based upon 

the design, interior details, and overall schematics supplied by Matlack. Bryan 

ultimately contracted with Todd. Bryan’s contract with Todd provided that Todd 

would devise a set of master and schematic plans to be designed according to the plans 

and specifications provided by Matlack. Matlack sent plans to Bryan for approval. 

Todd was to design the appropriate plans to the approved specifications set out by 

Matlack. Todd drafted approximately 60 pages of intricate drawings, design diagrams, 

roof plans, ceiling plans, etc. 
LDF Construction, Inc. v. Bryan Page 17

Thus far, the allegations in this section are those essentially unique to Todd or 

that relate to Todd and Matlack. Previously, we have discussed in detail, for the 

purpose of addressing the scope of LDF’s arbitration provision, the allegations made 

against LDF. It is now necessary to repeat many of those same allegations. However, 

this time, the purpose of this review of the allegations is to show how interrelated 

Bryan’s allegations against LDF, Todd, and Matlack are and thus how impractical it 

would be to try to resolve the allegations against LDF and Matlack in one forum and 

those against Todd in another.

In 2007, LDF contracted with Bryan to construct the new building. The contract 

included Todd’s and Matlack’s work. LDF was to finish the building within 210 days 

and “execute the Work described in the Contract Documents.” The contract also listed 

Todd as the architect overseeing the project. Bryan alleged that LDF knew the 

provisions in the contract relating to the architect would not be followed. 

As previously described, construction of the office did not go well. When it came 

time to install the sheetrock, Bryan began to question the ceiling heights. Bryan alleged 

he received either unintelligible answers or no answer at all from LDF, Matlack, and 

Todd. LDF, Matlack, and Todd eventually acknowledged that the ceiling heights could 

be altered but for an additional cost. As construction problems mounted, Bryan began 

to investigate the cause.

After a review of the plans, Bryan learned that the plans of Todd and Matlack 

were incompatible and that Todd’s plans did not incorporate Matlack’s designs. Bryan 

alleges that LDF, Todd, and Matlack were aware of the problems and discussed among 
LDF Construction, Inc. v. Bryan Page 18

themselves ways to “cover-up” and fix the problems, rather than informing Bryan of 

the problems. LDF, Todd, and Matlack, Bryan alleged, held themselves out to be 

professionals who where competent and experienced. Bryan claimed that LDF, Todd, 

and Matlack contracted with him “to provide services that would facilitate, correspond, 

and accentuate the endeavors contractually and voluntarily undertaken by the other 

defendants” according to a specific scheme and design approved by Bryan. 

Bryan further alleged that LDF, Todd, and Matlack failed with regard to 

workmanship and integrity of the work undertaken by them. Todd and Matlack 

prepared inaccurate, incompatible plans while LDF, who had a duty to ensure that 

construction was conducted in accordance with the plans, did not inform Bryan of the 

problems with the plans upon LDF’s discovery of the problems. Furthermore, Bryan 

alleged, LDF performed services in an unacceptable and unworkmanlike manner in that 

among other things, deviations from the plans were made without informing Bryan.

In this instance, the claims against Todd are so intertwined and interdependent 

with the claims against LDF and Matlack, both of which have arbitration provisions in 

their contracts with Bryan, that it would be impractical to resolve the disputes against 

them in arbitration without simultaneously resolving the claims against Todd. 

Defenses

Bryan asserts that Todd cannot assert equitable estoppel to compel Bryan to 

arbitration because Todd has unclean hands. Bryan relies upon the principle in law that 

he who seeks equity must do equity. See Truly v. Austin, 744 S.W.2d 934, 938 (Tex. 1988) 

(“It is well-settled that a party seeking an equitable remedy must do equity and come to 
LDF Construction, Inc. v. Bryan Page 19

court with clean hands.”). A party seeking to invoke this equitable doctrine must show 

that he has been seriously harmed and the wrong complained of cannot be corrected 

without applying the doctrine. City of Fredericksburg v. Bopp, 126 S.W.3d 218, 221 (Tex. 

App.—San Antonio 2003, no pet.). Bryan asserts that at the hearing he proved Todd did 

not come to court with “clean hands.” Specifically, Bryan argues that Todd’s attorney 

admitted that there was a discrepancy in the ceiling height. Further, he argues that in 

an email presented at the hearing, LDF knew of the discrepancies and sent nineteen 

“requests for information” to Todd requesting information from Todd on how to 

proceed. According to the email, Todd told LDF how to proceed regarding the ceiling 

height discrepancies. 

Todd and LDF assert that Bryan did not present any evidence of “unclean 

hands” at the hearing. Specifically, Todd and LDF assert that this Court cannot rely on 

the email because it was not properly introduced into evidence at the hearing. We need 

not resolve whether trial counsel’s references to documents not otherwise introduced 

into evidence was evidence properly before the trial court. Even if we consider the 

email and argument of counsel as evidence regarding the conduct of Todd, it would 

only go so show a possible breach of the contract and is not of the character of evidence 

that shows “unclean hands” such as to defeat the application of the doctrine of 

collateral estoppel to compel Bryan to arbitrate the claims against the non-signatory to 

the arbitration agreement, Todd, along with the claims that are subject to arbitration 

against LDF and Matlack.
LDF Construction, Inc. v. Bryan Page 20

Bryan also argues that the trial court had discretion not to apply equitable 

estoppel, even if it could be applied in the same circumstances. We disagree. "A trial 

court has no 'discretion' in determining what the law is or applying the law to the facts." 

Meyer v. WMCO-GP, LLC, 211 S.W.3d 302, 308 (Tex. 2006) (quoting, Walker v. Packer, 827 

S.W.2d 833, 840 (Tex. 1992)).

Accordingly, we hold that Bryan’s claims against Todd should also have been 

referred to arbitration and conditionally grant Todd’s petition for writ of mandamus.

MATLACK

Finally, we note that the trial court withdrew its order which referred the claims 

against Matlack to arbitration, holding that the order was rendered without adequate 

notice to Bryan. Bryan conceded in his brief filed with this Court that he does not 

contest the validity of the Matlack arbitration agreement. Matlack filed amicus briefs 

with this Court in these proceedings in support of having all the claims of Bryan against 

all the defendants referred to arbitration together. We have no reason to believe that 

the trial court will not grant Matlack’s pending motion to refer Bryan’s claims against 

Matlack to arbitration, especially in light of the discussion and holdings herein. Because 

the trial court has not ruled on Matlack’s pending motion, because we have no 

proceeding before us which addresses that motion, and further because we cannot 

compel the trial court to rule on the motion in a certain way, we decline at this time to 

mandate the trial court’s ruling on that motion. See In re Salazar, 134 S.W.3d 357, 358 

(Tex. App.—Waco 2003, orig. proceeding); see also State ex rel. Curry v. Gray, 726 S.W.2d 

125, 128 (Tex. Crim. App. 1987).
LDF Construction, Inc. v. Bryan Page 21

CONCLUSION

In summary, we conditionally grant LDF’s and Todd’s petitions for writ of 

mandamus. A writ will issue only if the trial court fails to withdraw its order denying 

the abatement of the trial court proceedings and the referral of Bryan’s claims against 

LDF and Todd to binding arbitration within 21 days from the date of this opinion. 

Further, the appeal by LDF and Todd is dismissed.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis 

Appeal dismissed

Petitions conditionally granted

Opinion delivered and filed March 10, 2010

[CV06]