## In the Court of Appeals Second Appellate Distri ct of T exas at Fort Worth

___________________________ No. 02

- 23

- 00329

- CV

___________________________

On Appeal from the 153rd Distric t Court Tarrant County, Texas Trial Court No. 153

- 327718

- 21
Before Sudderth, C.J.; Birdwell and Bassel, JJ.

Me morandum O pinion by Justice Birdwell 

### F AMOUS 

### W ATER 

### C OMPANY 

### , L.P., C RAZY 

### B OTTLING 

### C OMPANY 

### , LLC, F AMOUS 

### W ATER 

### H OLDINGS 

### , LLC, S COTT 

### E LDER 

### , C AR OL 

### E LDER 

### , T ROY 

### H USEMAN 

### , K ELLI 

### H USEMAN 

### , J ACK 

### B RADSHAW 

### , J ANET 

### B RADSHAW 

### , T OM



### F IREOVED 

### , AND 

### M I KE 

### M ODANO 

### , Appellants

V



### . A QUIO 

### S OLUTIONS 

### I NTERMEDIATE 

### H OLDINGS 

### , LLC , Appellee2 MEMORANDUM O P INIO N
I. Introduction At the beginning of 202 1 , Ap pellant s Famou s Water Company, L.P. (FWC) , C razy Bottling Company, LLC (CWC) , Famous Water Holdings, LLC (FWH) , Scott Elder, Carol Elder, Troy Huseman, Kelli Huseman, Jack Bradshaw, Janet Bradshaw,
Tom Fire oved , and Mike Modano agreed in a Letter of I ntent (LOI) , follow ed by a Memorandum of U ndersta nding (MOU ) se veral months later , t hat they would sell a mineral

- water business and a parcel of Palo Pinto County real property to Appellee Aquio Solutions Interm edia te Holdings, LLC via a se t of interrelated agreements

. When the deal did not close in August 2021, multi

- county litigation ensued, resulting

— a yea r and a half later

— i n the denial , by the Supr eme Court of Texas, of a dominant

- jurisdiction questi on rais ed in Appellants ’ petition for w rit o f mandamus

. 1
Se e In re Famous Water Co. , No. 22

- 0355 ( Tex. Dec. 16, 2022) (orig. proceeding) ; s ee al so In re Famou s Water Co. , No. 02

- 22

- 00103

- CV, 2022 WL 1250 841, at *1 (Tex. App.

— Fort Worth Apr. 27, 2022, orig. proceed ing [ mand. denied ] ) (per curiam) (mem. op

. )

. 2

1 FWH wa s not b rought into this case unt il April 2022 , but it was a defendant (along with the Elders) in Aquio ’ s Palo P i n to Cou n ty lawsuit in cause number C50090

. I t and the other appellants sued Aquio i n Pa lo Pinto County in ca use number C50109.

2 The parties requested tha t the trial c ourt take ju dicia l notice of “ certain files and materials

. ” One of the se requests included the m andamus petition and record filed in th is court and the one filed in the sup reme court
. The trial cou rt g r anted the
r eques t.3 Half a year later, Appellants filed a moti on to compel arbitration and to stay the

case , asking the trial court to e nf orc e the arbit ration clause in Section 8.3 of the
part ies ’ two interest purchase agreements ( IP As )

. Aquio , in turn , sought to compel Appellants ’ di scovery r espo nses on the me rits and sought attorney ’ s fees and costs as discovery san ctions. Following a hearing on September 1, 2023 , at which the trial co urt requested supple mental briefing, the t rial court denied Appellants ’ motion to compel arbitration

“ [f]or the r easons set forth in the filings and briefing of [Aquio] , ” den i ed Aq uio ’ s sanctions motion , and granted Aquio ’ s discovery motion

. This interlocu tory appeal
fol lowed. 3 See Tex. Civ . P rac. & R em. Code Ann. § § 51.01 6 , 171.098.
In their first issue , Appel lants complain that the t rial co u rt erred by denying
th eir motion to com pel arbitration , contending that they met their burden to establish
the existence of a va l id a rbitration agreement , that a ll the parties ’ claims fall within
th at agr eement ’ s scope , and tha t Aq uio failed to meet its burden to prove a valid
defense to enforcement. Among other arguments, Aquio responds that App ell ants fai led t o meet their threshold bur den to establish the existe nce of a valid and
enforc eable arbitr ation agreement
.

3 Ap pellants alternatively request that the court consider part of its b rief as a mandamus petition , seek ing relief f rom the trial c ourt ’ s order gr an ting Aquio ’ s motion to compel di scovery . Because of our re solution o f Appellants ’ f irst issue, we need not do so. See Tex. R. App. P. 47.1.4 In their second issue, Appell ants argue that the trial court erred by granting Aqui o ’ s motion to compel dis covery becau se the disc ov e ry r e quest s go to the merits of the parties ’ claims and d efen ses , wh ich they co ntend m ust be arbitrated

. Because
the trial court did not abuse its d iscretion by deny ing Appellants ’ arbitration motion,

we ove rrule their first issu e , do no t rea ch their second issue , and affirm the trial

court ’ s orde r.
I I. D iscussion
Becaus e th e trial cour t ’ s order was based on “ [ t ] he reasons set forth ” in Aquio ’ s fil ings and briefing, we will be gin our review with the parties ’ pending claims a nd filings pert ainin g to the arbitration dispute before turning to the applica ble law on
arbitratio n and o ur interpret ation of the arbitration clause

. A. Background In its live p leading at the time of the hearing , 4 Aquio sought recovery from Appellants fo r breach of con tract (including specific performance) , sought a declaratory judgment that the LOI a n d MOU were valid, bindi ng agreements ( except for the severable P aragraph 5 of the MOU ) , 5 and sought atto rn ey ’ s fees and costs

. Appellant s , whose claims had b een transferred in to this case from their Palo Pinto

4 A week after the hearing on Appellant s ’ motion to compel ar bitration , Aquio filed its fifth amended p etitio n , adding to its breach

- of

- contract complaints

.
5 Paragrap h 5 of t he MOU pertained to a n ag reem ent to agree: “ Buyer and Seller agree to draft langu a ge prior to Closing which will preserve th e historical nature of the storefront buil ding kn own as the Famous Water Pavilion and attached garden area . . . . ”5 County case, sought a decl arator y judgment tha t they had proper ly terminated the agreements because of Aquio ’ s breaches , sought recovery f rom Aquio for breach of

contract , and sought attorney ’ s fees

. Both parties, in their various filings, identified the
LOI ; the MOU ; t he two IPAs ; and the sale, purch ase, and es c row real property agreement ( the SP E) as the ir “ integrated ” and “ interrelated ” transaction documents.
Based on the I PAs ’ identical arbitration clause s , Ap pellants moved to comp el
all the parties ’ claims to be resolved in arbitration , ar guing that one document containing an arbitrati on clause was sufficient to require arbitratio n of claims arising
unde r the other documents because they were part of one transaction

. Aquio responded that Appellants had expl ic itly and impl icitly waived their right to enforce
the arbit ration clause

. A t the h earing, the t rial court ex presse d tha t the use of “ may ” in the arbitration clause mig ht be “ the key an swer ” and i nstructed the parties to file supplemental briefs addressing the issue. 6 In its supplemental brie f, Aquio argued that the clause was

une nforceable because it “ co nf l ict s with the . . . l itigation provisions/agreemen ts [in
the LOI ’ s governing law/ ve nue clause and the SPE ’ s waiver

- of

- jury

- trial and

sever ability clauses] and is itself encumbered by la ngua ge that prevents any party from forcing this d ispute into arbitr ation ” based on the use of “ may . ” Aquio also argu ed
that Appel la nts had failed to satisfy the ar bitration clause ’ s conditions precedent

.

6 The trial cour t told the parties, “ I wa nt e very [arbitration] c ase that ’ s ever talked a bout ‘ may ’ versus ‘ shall. ’ ”6 Appe ll ants argued that the arbitration clause was v al id and not l imited by

“ may ” and that any issue s related to conditions precedent (time limits and notice)
were matters of p roced ural arbitrability for the a rbitrator to decide.
B. Standard of rev iew
We review a trial court ’ s order denying a motion to c ompe l arbitration f or abu se of discr etion. W agner v. Apache Corp. , 627 S.W.3d 277, 283 (Tex. 2021)

. Under
T ex as la w, the trial court conducts a summary proceeding

— based on the parties ’ affidavits, pl eadings, d iscovery, and stipulations

— t o determine an arbi tra t i on clause ’ s
ap plicab ilit y . Leland Penn i ngton, Inc. v. Bulls , No. 02

- 20

- 00282

- CV, 2021 WL 832690, at
*2 ( Tex. App.

— Fort Worth Mar. 4, 2021, no pet.) (mem. op.). The record must be
construed in a light favorable to supporting the trial court ’ s ruling. I d. a t *5. We defer
to the trial court ’ s factual determinations if they are supported by evidence but review
i ts le gal determinations de novo. Henry v. Cash Biz, LP , 551 S.W.3d 111, 115 (Tex. 2018)

. C. Arbitration
A n arbitration clause is a “ spe cialized ki nd o f for um

- selecti on cla use. ” Pinto Tech. Ventures, L.P. v. Sheldon , 526 S.W.3d 428, 437 (Tex. 2017) (quot in g Sch erk v.
Alberto

- Culver Co. , 417 U.S. 506, 519, 94 S. Ct. 2449, 2457 (1974) )

. In S cherk , the Supreme Court pointed out that an a greement to arb itrat e before a spec ified tribunal

“ posits not only the situs of suit but also the procedure to be used in r es olvin g the dispute. ” 417 U.S. at 507, 94 S. Ct. at 2457

.7 “ Texas law encourages parties to resolve disp utes through arbitration, but it
will n ot force t h em to arbitrate unless the y have agreed to that alternative. ” G.T. Leach Builders, LLC v. Sapphire V.P., LP , 458 S .W .3d 5 02, 508 (Tex. 2015) ( footnot e s omitted). That is, arbitration, a s a matte r of contrac t, is a matter of consent, not
coercion , and part i es cannot be compelled to arbitr ate any controversy unless they have contractually agreed to do so. TotalEnergies E& P USA , Inc. v. MP Gulf of Mex

. , LLC , 667 S.W.3d 694, 701 (Tex. 2023) ; see Jody James Far ms, JV v. Altman Grp. , 5 4 7 S.W.3d 624, 62 9 (Tex. 20 1 8)

. A rbitration agreements are i nterpreted under traditional contract principle s : the plain language controls, t he c our t must examine and consi d er the entir e writin g in an
effort to harmonize a nd give effect to all th e contract ’ s provisions so t hat none w i ll be
rendere d meaningless , and no single prov ision taken alone will be given controlling
effect

. In re Whatabur ger Res t s . LLC , 645 S.W.3d 1 8 8, 194

– 95 (Tex. 2022) ( ori g. proceeding) ( first citing J.M . Davidson, Inc. v. Webster , 128 S.W.3d 223, 2 27 (Tex. 2 0 03) ; then citing Wagner , 6 27 S.W.3d at 285 ; and then citing Sundown Energy LP v. HJSA No. 3, L.P. , 622 S.W.3d 884, 888 (Tex. 2021)). Further, c o n text ma tters when interpreting

a contr a ct. Id. at 196 ; see Branch Law Firm, L.L.P. v. Os born , 447 S. W.3d 390, 3 95 (Tex. App.

— Houston [14th D ist.] 2014, no pet.) ( noting that parties may place limits on their ag reement to arbitrate ). C ontr act con struc tion ’ s prim ary g o al is to effectua t e the parti es ’ intent as ex pr ess ed in th e co n t r act. M o nro e Guar . Ins. Co. v. BIT C O Ge n. Ins. Corp. , 640 S .W.3d 1 95 , 19 8

– 9 9 (Tex . 20 22 )

.8 We may not rewrite the parties ’ contract but must cons true it as a whole to
determine their purp oses when they signed it. Baby Dolls To pless Saloons, Inc. v . Sotero , 642 S.W.3d 583, 58 7 (Tex. 2022)

. 7 W e should construe the co ntract to avoid a
forfeitu re, whi ch is dis favored under Texas law, and instead find terms to be sufficiently definit e whenever the language is reasonably susceptible to suc h an interpretation. Id. And when we construe an agreement t o avoid forfeiture, we m ay imply terms that can be reason ably implied. Id.
U nder app ropriate circum sta n ces, instrum en ts pertaining to the sa me

trans ac t io n may be read to ge ther t o a sc er tain t h e par ties ’ intent, even if t he p arties

e x ec u te d th e i ns t r uments a t d iff erent ti mes a nd e v en if the instrume nts do n o t

e x pr ess ly ref e r to e a ch other. Rieder v. Woods , 603 S.W .3d 86, 94 (Tex. 2020)

. Wh e n

a pp ropriate, a co u rt ma y determi ne as a mat ter o f l aw that separate c ontra ct s ar e part of a “ s ingle, uni fied instrum e nt ” by d eterm ini ng wh ethe r e a ch instrum e nt w as a

ne c e ss a ry par t of the sa me transaction

. I d. at 94

– 95 ( ca uti o n in g that t ethe ring
docume nts is simply a d e v i ce to g iv e effe ct to the pa r ties ’ in t e nt an d c ann ot be a pplied

“ without re gar d to th e re al iti es of the s itu at io n ” )

. The arbitrat ion clause at issue here r eferenc es the F ederal A rbitration A ct (FAA). Under the FAA, a party seeking to compel arb itrati on mu st es tablish the

7 In Baby Dolls , the plaintiff unsuccessfu lly sought to avoid th e contract ’ s arbitration clause by arguing that the re was no mee tin g of the minds on the co ntract itself base d on th e in consistent use of terminology

— the words “ a greement ” and

“ license

. ” 642 S.W.3d at 587

– 88

.9 existence of a v a lid ar bitrat ion agreement and the existence of a dispute within the
agr e ement ’ s scope
. Lennar Ho mes of Tex. Land & Constr. , Ltd. v. Whiteley , 672 S.W.3d 367, 376 (Tex. 2023) ( quoting Baby Dolls , 642 S.W.3d at 58 5

– 8 6 )

. Gene rally, courts
decide th ese gateway matte rs . I d

. ; B aby Dolls , 642 S.W.3d at 586 ; J.M . Davidson , 128
S.W.3d at 227 . The presumptio n favoring arbitration arise s “ only a fter the party seeking to compel arbitration proves that a valid arbitration agr eement exis ts
. ” J. M.
Davidson , 128 S.W.3d at 227 ; s ee Bon smara Nat. Beef Co. v. H art of Tex. Cattle Feeders,
LLC , 60 3 S.W.3d 385, 397 (Tex. 2 020) ( stating that w hether p artie s have committed their disputes to arbitration is a gateway matter for the court t o decide an d is controlled by state law go verning t he val idity, revocabil ity, and enforceability of
contracts genera l ly (quoting Jody James , 5 4 7 S.W.3d at 631 & n.12 ) )

. D
. M andatory versus permissive lan guage

“ Mandatory ” language in arbitration clauses h as generall y include d “ shall ” in

statements like “ D ispute s under this Agreem ent of any nature what soever . . . shall be resolved through dema nd by any interested par ty to arb itrate the dispute , ” RSL
Fundi ng, LLC v. Newsome , 569 S.W.3d 116, 119 (Tex. 2018) (referring to arbitration
clause as “ man datory ” ) , 8 and “ [ A

] ny Claim a rising out of or related to the Contract . . .

8 The N ewsome dispute did not turn on whether the clause was mandato ry b ut rather on the arbitrator ’ s deciding the issues ’ ar bitrability

. 569 S.W.3d at 119, 12 3 ( “ Here , the courts below have not quest i oned the validity of the parties ’ arbit ration clause. We thus have no choice b ut to send this dispute to arbitrat i on for th e ar bitrator to at least decide arbitrabili ty. ” ).10 s hall . . . be subject to a greed private arbitration [and] s hall be deci ded by binding
arb itratio n , ” G.T. Leach Builders , 458 S.W.3d at 510

. 9
There are f ar fewer cases that discuss the use of “ may ” i n arbitration clauses , and sometimes those clauses are he l d to be mandatory despite the general distinction s b etween “ may ” and “ shall

. ” Co mpare I n re U.S. Home Co rp. , 236 S.W.3d 761, 763 (Tex.
2007 ) (orig. pr oceeding) , and F eldman/Matz Int s . , L.L.P. v. Set tlement Cap

. Corp. , 140 S.W.3d 879, 888 (Tex. App.

— Housto n [14th Dist.] 2004, no pet .) ( “ [A] lthough the
agreem ent sta ted that either party ‘ may ’ su bmit disagreements to arbitration, a number
of the federal ci rcuits

— including the Fifth Circuit

—have in terpre ted similar language to mean that either party has the po w er to require arbitration. ” ) , with G.T. Leach
Builde rs , 458 S.W.3d at 52 5 (stating that w hen joinder provisio n stated that arbitration

“ may include ” o ther parties, ther e was no basis on which to con clude that the parties
intend ed the word “ may ” to be man d a tory rather than permissiv e ), Iliff v. Iliff , 339
S. W.3d 74 , 81 (Tex. 2011) ( stating that “ t he permissive word ‘ may ’ imports the
exercise o f discretio n ” in discussion of f amily law st atute ) , D allas Cnty. Cmty. Coll. Dist.
v. Bolton , 185 S.W.3d 868, 874 (T e x. 2005) ( stating, in stat utory

- int erpretation con te xt, tha t “ [t] he words ‘ may ’ and ‘ shal l ’ mean different things, and . . . [t] he context in this

cas e does not require an interpretation of th e perm issive word ‘ may ’ to mean somethi ng other than its plain m eaning ” ) , Tex. Gov ’ t Code Ann. § 311.01 6(1)

– (3)

9 G.T. Leach involve d a n expansive con structi on

- r elated dispute and whether the ge n era l contractor h ad expressly or impliedly waived its right to demand arbitration. 458 S.W.3d at 511.11 (exp laining that “ may ” creates discretion ary authority or grants permission or a power ,

“ sh all ” impose s a duty , and “ must ” creates or recognizes a con dition precedent and
that these const ructions apply “ unle s s the context in which the word or phrase
appears ne cessari ly requires a differ ent constr uction or un less a different construction is expre s sly provid ed by statute ” ) , Shall , Black ’ s Law D ictio nary ( 11 th ed. 2019) ( stating that under the first of five defi n itions, “ shall ” means “ [h] as a duty to; more broadly, is requ ired to [;] . . . [t]his is the ma nda tory sense that drafters typically intend
and that co urts typically u p hold ” ) , 10 and May , Black ’ s La w Dict ionary (11 th ed. 2019) ( stating that under the first o f three definitions, “ may ” mea ns “ [t] o be permitted

to ” ). 11
I n U.S . Home Corp. , which involved c onstruing two contracts in connection
with a home sale , the sales contract stated that any claim “ sha ll be determined by
mediation o r by binding arbitration, ” wh i le the warranty book stated t hat either party

“ may ” reque st arbi tration. 236 S. W.3d at 763, 765. T h e p laintiffs relied on the

10 In addition to the firs t definition of “ shall , ” Blac k ’ s Law D i ct ionary defines

“ shall ” as (2) “ Should (as often i n terp reted by courts) ” ; (3) “ May [;]

. . . [w] hen a
n egative word such as not or no precedes shall [,] . . . the word shall often means may . What is be ing negated is pe rmission, not a re quirement ” ; (4) “ Will ( as a future

- tense verb) ” ; and (5) “ Is entitle d to. ” Sh all , Black ’s Law D ictionary (11th e d. 2019)

. As to the first meaning

— has a duty to or is required to

— “ [ o]nly sense 1 is acceptable u nder strict st andards of draf ting. ” Id.

11 In addition to the first de fin ition of “ may , ” Black ’ s Law Dictionary def ines

“ m ay ” as (2) “ To be a possibility ” an d (3) “ Loosely, is required to; shall; must. ” May , Black ’s Law D ictionar y (11th ed. 2019)

. I t notes, “ In dozens of cases, courts have held may to be synonymous with shal l o r m ust , usu. i n an effo rt to effectuate wh at is s aid to be legislative intent. ” Id.12 warranty book ’ s use of “ may ” to argue that arbitration was not mandatory

. Id. at 765.
Th e su preme cour t disagreed and concluded t h at the two clauses did n ot render the

cont racts amb iguous because alth ough th e “ may ” clause a llowed either party to request arbitration, “ n othing in i t sugges t[e d] arbitration was o ptional if either did; t o

t he con trary, the clause constit uted a binding p r omise to a rbitrat e if either party
request ed it. ” Id. Because the defe ndant h ad requested arbitration , th e plaintiffs could not then opt ou t of it. Id

. As in any contract case, whe ther an arbitration clause can be construed as permissive depends on the l a ngu age used. See Travelers Indem. Co. v. T ex. Mun. League Joint Self

- I

ns . Fun d , No. 01

- 08

- 00062

- CV, 2008 W L 2756874, at * 1 (Tex. App.

— Houst on [1st Dis t.] July 17, 2008, no pet.) (mem. op.). In Traveler s , the arbitr ation clause stated,
Eit her party may , by written request to the other party, seek t o arbitrate any dispute aris in g out of, or related in any way to this Contract or the transaction s hereunder , including it s formation, termination, and validity, othe r than disputes with the Prope rty Reinsurer(s) u nder Article XI,

‘ Joint or Disputed Loss[, ] ’ which will be ar bi trated pu r suan t to the
ma ndatory binding ar bitration provisions of t hat Arti cle.

. . . Following re ceipt of a request for arbitration, the non

- r equest ing party shall, within thirty ( 30) days b y written response, accept or reject such a request. Once such a writt en resp onse has been delivered, the parties m ay not, except by mutual agreement, revoke the decision to proceed with arbitration. Within t hirty (30) days after delivery of a written res p onse accepting a request for arbitration, each par ty shall appoint an ar bi tra t or. Id. (emphas es added). The co urt concluded that the defe ndant had f ailed to prove that
a valid binding arbitration agreement existe d because the agreement used permissive13 l a nguage

— “ e ither party may , by written reque st to the other party, seek to arbi trate

a ny dispute ”

— and then a llowed the non

- requesting party t o accept or to reject the
request. Id. at *2. The court stated, “ It i s clea r that the parties inten ded that one part y could reject the other party ’ s request to seek arbitration, ” and concluded that to h old
tha t the provision was mandatory would render t he rejection l anguage meaningless. Id.
at *2

– 3 ( “ [T]h ey clearly expresse d the intent that either party be able to rej ec t the other party ’ s r equest to seek arbitra tion

. ” )

. 12 Compare Tex. Health Res. v. Kruse , No. 0 5

-

12 T he Travelers court distinguishe d several cases reaching the contrary
c onclusion when “ may ” was used because none of the arbitra tion clauses in those cases contain ed la ngu age that indicate d a pa rty could reject a reques t to seek arbitration. 2008 WL 27568 74 , at *3 (dis t inguishing United States v. Bankers Ins. Co. , 245 F.3d 31 5, 320

– 21 (4th Cir. 2001); Am. Ital ian Pasta Co. v. Austi n Co. , 914 F.2d 1103, 1103 (8th Cir. 1990) ; C eres Marine Terminals , Inc. v. Int ’ l Longs hore men ’ s Assoc., Loc

. 1969 , AFL

- CIO , 6 83 F.2d 242, 2 46 (7th Cir. 1982); Loc

. 771, I.A.T.S.E., AFL

- CIO v. RKO Gen., Inc. , 546 F.2d 1107, 1115

– 16 (2nd Cir. 1977); Bonnot v. Cong

. of Indep. Unions Loc

. No. 14 , 331 F.2d 355 , 3 59 (8th Cir. 19 64); Deaton Truck Lin e , In c. v. Loc

. Union 612 , 314 F.2d 418, 421 (5th Cir. 1962); Cit y of Louisa v. New land , 7 05 S.W.2d 916, 917 (Ky. 1986) ; Orthopedic Phys ical Therapy Ctr. v. Sports Th erapy Ctrs., Ltd. , 621 A.2d 402, 403 (Me. 1993) ; TM De lma rva Power , L.L.C. v. NCP of Va., L .L.C

. , 55 7 S.E.2d 199, 201 (Va. 20 02) )

. In Bankers , the court stated that a clause providing that “ disputes . . . m ay be referred to arbitration ” had the eff ect of giving the aggrieved party the choice between arbitrat ion or aband onment of his claim and r e lie d on the next four cases cit ed after Ba nkers in Travelers as reaching sim ilar conclusions based on comparable “ p ermissive ” language in arbitration agreements : “ i f both parties agree, ” “ may refer th e grievance to arb itr ation, ” “ may submit to arbitration , ” a nd “ [ t] he ob vious purpose of t he ‘ may ’ language is to give an agg rieved party the choice between arbitration or a bandonment of its claim. ” 245 F. 3d at 32 1

. But s ee PCH Mut. Ins. Co. v. Cas. & Sur., Inc. , 569 F

. S upp. 2d 67, 76 (D.D.C. 2008) (d istin guis hi n g Ba nkers ’ s con clusion ba sed on additional language in arbitration clause after “ ma y ” and context ). In PCH , the court noted that the fe deral cases requiring arbit ration when “ may ” is used generally involve the int erpretation of arbitration claus es i n th e c o ntext of collective barg aining14 13

- 01754

- CV, 2014 WL 340863 6, at *3 (Tex. App

. — Dallas Ju ly 11, 2014, pet. denied) ( mem. op.) (citing Travelers for the p roposi tion that “ [a] rbitration is permi ss i ve when the agreement to arbitrate require s both parties to subsequently agree to sub mit the
issue to arbitration with th e option of rejec t ing arbitra tion ” ) , with Greystone Multi

- Fam

. Builders, Inc. v. Tes Elec., LP , No. 01

- 15

- 00640

- CV, 2016 WL 336220 8, a t *3 (Tex. App.

— Houston [1st Dist.] June 16, 2016, no pet.) (mem. op.) ( “ Arbitration is

man datory when it allows either party to elect to arbitrate, wi thout requiring permission from the o ther contracting pa rty. ” )

. T he u se of “ may ” is not always the d eter m inant. In Southern Green Builders, L P v.
Cle veland , for example, the arbitration cl ause st ated,
The Owner and Builder a gree that all con troversies, cl aims (and any related settlements), or matters in questi on ari sing out of or relating to [the contrac t, t h e home construction, any of the builder ’ s acts or omissions, or ac tual or purported repres entations or warranties ] may be submitted to b inding arbitra tion, but both parties shall also have the right to seek other legal remedies as they see fit and the law allows

.

. . . .

. . . OWNER REPRESEN TS THAT OWNER HAS READ AND UNDERSTANDS THIS ENTIRE CONTRACT, INCLUDING THE AGRE EMENT FOR BINDING ARBITRATION O F DISPUTES RELATED TO THIS CONTRACT (AS AMENDED).

agreements, which have a heavy presumption in favor of mandatory arbitration , in contrast to the mere presumption in favor of arbi tra bility in the non

- labor cont ext tha t “ only ar ise s once the Cour t conclu des that a bindin g ag reem ent to arbitrate exi sts. ” 569 F. Sup p. 2 d at 77.15 558 S.W.3d 251, 253

– 54 (Tex. App.

— Houston [14 t h Dist. ] 2018, no pet.) (emphases
in italics added)

. T he tr ial court denied the builder ’ s motion to compel arbitration. Id.
at 254. Our sister c ourt he ld that the trial court had erred be cause nothing in the
contract suggeste d that arbitration was optional if eit h er side requested it and that
construction “ harmoni ze[d] an d g[ave] effect ” to the clause in which the owner acknowledged the “ binding a rbitrat ion of disputes

. ” Id. at 25 7

– 58

. Th e Southern Green conclusion drew a dis sent. See id. at 259 (Christopher, J., dissenting). The dissenting justice disagreed that the arbi tration clause was mandat ory in light of evidence showing that the builder ha d agree d to th e owner ’ s modification s

to th e b uilder ’ s boilerplate contract : the owner had removed near ly the entirety o f the mandatory arbitration clause , ha d chang ed the words “ shall be submitted to binding
arbitration ” to “ may be submitted to binding ar bitrati on , ” an d had add ed the language
that both parties “ shall have the right to seek other legal reme dies as they see fit and
the law allows

. ” Id. at 259

– 60. Because the supreme court permits consideration of
deletions from a form contract to determine t he part ies ’ in tent , b ecause generally

“ may ” is permissive while “ shall ” is mandat ory, a nd because construing the contra c t to require mandatory arbitration would render the portion about the right to seek other legal remedies meaningles s

— “ w hat other legal r emed ies could the sentence
refer t o if arbi tration was mandatory? ”

— Justice Christ opher would have held that the

a greeme n t did not mandate arbitration. Id. at 260

– 61. Justi ce Chris topher pointed out
that the use of “ may ” does not take on a special meaning i n an ar bitrati on contract:16 “ As always, the entire contract must be re viewed to se e if i t is mandatory or permissive. ” I d

. at 262 ; see Branch Law Firm , 447 S.W.3d at 395 ( “ While an arbitration
clause s tanding alone might appear to encomp ass the claims in qu estion, the co urt cannot confine its analysis to the construction of that clause alone. ” ). 13

13 In addition to U.S. Home Corp. and Southern Green B uilders , in the trial court, Appellants relied on Bonsma ra and the following Texas cases. The Bonsmara arbitration clause stated, “ Any disput e or c ontr over sy ari sing under, out of , or in connection with or in re lation to this cattle [

- ] feeding agreement and any amendment thereof, or the breach t he reof, may , at t he so le option and discretion of [ the other party], be determin ed and settled by ar bi tratio n . . . . ” 603 S.W.3d at 388 (em pha sis added). But t he court did not d iscuss the clause ’ s use of “ may ” ; instead, the parties ’ dispute focused on the ava il ability of the Texas Cattle Feeder s Associati on ’ s arbitration program and for um . Id. at 3 88

– 89, 397

– 40 0 ; s ee also Ma c Haik Chevrolet, Ltd. v. Parker , No. 01

- 22

- 00685

- CV, 2023 WL 1786163, at *2 (Tex. App.

— Houston [1st Dist.] Feb. 7, 2023, no pet.) (mem. o p.) ; Cooper I nd us., LLC v. Pepsi

- Cola Metro. Bo ttl ing Co. , 475 S.W.3d 436, 440 (Tex. App.

— Houston [14th Dist .] 2 015, no pet.) ; In re Wells Fargo Bank, N.A. , 300 S.W.3d 818, 822 (Tex. App.

— San Antonio 2009, orig. proceeding)

. I n W ells Fargo , the arbitra tion clause state d, “ Any party to this Agreem ent or to any Loan Document may requir e that any Di spute be res olve d by binding arbitrati on . . . . ” 300 S.W.3d at 822 (emphasis added) . However, our sister court did not construe the use of “ may ” but instead focused on the argu ments made in the trial cour t, which included whether nonsignatori es cou ld invo ke th e claus e, w heth er the clause was discharged in bankruptcy, whether the clause merged into the trus tee ’ s deed, and who was bound by it to determine that a valid arbitration agreement existed be tween th e p arties. Id. at 824

– 29. Likewise, th e clau se in M ac Haik stat ed, “ Eit her you or we may choose to have any dispute between us decided by arbitration and not in court or by jury trial. Any claim or dispute . . . shall , at your or our election, be resolved by neutral binding arbi tration and not by a court action. ” 2023 WL 178 6163, at *2 (empha ses added)

. However, the trial court did not address the ju xtaposition of

“ may ” and “ shall ” ; the parties instead filed an agreed motion to abate the case and refer it to arbitration

. Id. Only after a disput e abo ut pay i ng the arbitr at o r ar ose , fol lowed by s ignificant delay, did the trial court order that arbit ration had been waived. Id. at *3. In Cooper , one of the parties ’ agreements provi ded that either party

“ may ” ini tia te arbitration to resolve a dispute and a nother that any disp ute not settled within 60 days “ shall be finally settled by arbitration

. ” 475 S.W.3d at 4 40 . The court17 “ Altho ugh the parties broad l y may agree to arbitrate in one part of the
agreemen t, th ey also may place limits on the agreement to arbitrate in an oth er part of the agr eement. ” Branch Law Firm , 447 S.W.3d at 395. Even though the wording of an
arbitra tion c lause may be broad, its scope may be limited by language elsewhere in the
agreement in which the parti es unambigu ously n egate or limit the arbitration clause with respec t to a given m atter in dispute. Id. ; see O ’ Shaughnessy v. Young Living Essential Oils, L.C. , 810 F . App ’ x 308, 312 & n.6 (5th Cir. 2020) (concluding that there was no

me eting of the minds as to arbi tration when arbitration clause ’ s lan guage directly

con flicted with juri sdiction

- a nd

- choice

- of

- law clause stating that “ [a]ny l egal actio n

conc erning the Agreement will be br o ught in the state and federal courts ” with no

referred to the “ broad clause requiring arbitration , ” but the dispute on app eal pertained no t to construction of the arbitration clau se but to whether a non sign atory could comp el arbi tration , whether direct benefits estoppel could compel other
n onsignatories to arbitrate , and w hether the appellant had expressly or i mplicit ly waived its right t o a rbitration. Id. at 442

– 53. Appellant s als o refer red th e trial co u rt to Deaton Truck Li ne , a dispute in the Fifth Cir cuit about specific performance of an agreement to arbitrate labor disputes or grievances under a collective bargaining contract. 314 F. 2 d a t 421. The provision at issue stated , “ If the Un ion and the C omp any fail to agree, the di spute m ay be submitted to arbitration and the decision of the arbiter shall be final. ” Id. (emphases added) . The initial dispute was not on whether to submit to arb itr ation

— the union demanded arbitration , and the co mpany agreed to subm it to arbitration but sought to specifically limit its agreement to arbitrate to submitting the contract and briefs to the
ar biter without taking any testimo ny. Id. The company subs eque ntl y sought to avoid arbitration based on, a mong ot her things, t he clau se ’ s use of “ may. ” Id. at 422. Re ly ing on two other union

- related cases and without additional d iscussion, the court stated,

“ Clearly, however, ‘ may ’ shoul d be construed to give eithe r a g grieved party the option to require a rbi tration

. ” Id. at 422

– 2 3 ( “ I t is important for labor pea ce that the processes of arbitration not be permitted to fail. ” ).18 limiting l anguage suggesting that it only applied to disputes not subject to a rbitra tion , in contrast to ot her clauses containing suc h limiting lang uage) ; see also Oc eanic Co s . v. Kukui ’ ula Dev. Co. (Haw

. ) , LL C , 257 P.3d 1221 ( Haw. Ct. App. 2011) (c oncluding that

“ [ t ] he juxta positio n of mandatory and permissive language i n such pro ximity and
usage [in the arbit ration c lause] demonstrates an intentional distincti on bet ween what is required and what is not requir e d ” ).
E . The parties ’ ag reements On Jan uary 28, 202 1, the parties signed the LOI t o memor ialize their
discussions for Aquio t o acquire the assets or capi tal stock of CBC, FW H , and FWC

. The L OI gav e Aquio a period of seven months to have the sole and exclu s ive option

to acquire the assets or capital stock “ as set fo rth in the P urchase Agre ement (defined hereafter)

. ” The LOI set out that the agreement ’ s “ No Shop ” perio d was a material obligation that

— if violated

— would make CBC, FWH , an d FWC liable to Aquio f o r all costs incurred by it in a ny way related to the L OI , the due dilige nce period, or any
matter related there to as of the date Aquio received actual no tice of suc h viol ation , plus indemnification of Aquio for all damag es, costs, and losses (including a t t orneys ’
fees and court c osts) r elated to such violation. In the LOI, the parties agreed to
end eavor in good f aith to negotiate and enter into either a d e finit i ve acquisition or stock purchase agreement d uring the due d iligence period.
A t that time, besid e s a pre viously signed confidentiality agreement, the LOI represented “ the entire agreement among the parties . . . with respect to the subje ct19 mat ter her eof. ” It included the parties ’ reco gnitio n that the LOI constitut ed a “ legal,
valid and bin ding ob liga t ion, enforc eable against [each party ] in accordance with its terms, except as such enforceability may be limited by b ankruptcy, insolv ency,

reo rganizatio n, moratoriu m or other l aws affecting cre ditors ’ rights and by ge neral principles of equity (wheth er a p plied in a proce eding at law or in e quity). ” T he LOI ’ s choice of law was Texas and venue for any dispute relating to the LO I “ shall only be
proper in the S t ate Courts in Tarrant Count y. ” On June 1, 2021, CBC , FWC , FWH , an d the E lder s entered the MOU with Aquio. The MOU provided that th e Elder s and CBC had executed a purchase agreement with Aquio (t he CBC IPA ); that th e Elders and F WC had executed a purcha se agreement with Aquio (the FW C IPA ); and that pursuant t o a sal e, purchase , and escr ow agreement, FW H wo uld sell, convey, and transfer all of its interest in a parcel of Minera l Wells real property to Aq uio (the SPE ). The MOU contained a merger clause ac knowledging it as “ th e complete agreement betwe en the Parties with respect to the subj ect matt er cont a i ned herein and can not be varied except by written
agreement. ”
The MO U co ntaine d an attorney ’ s

- fee provision stating that if any party failed to perform or if a di spute arose concerning the MOU ’ s provisions, and an action is filed, the prevailing party i n any su ch action shall be entitled to recover from the other party, in ad dition to any other relief that may be granted, its court costs and reasonable a t torneys ’ fees and disbursements, in cluding such fe es and disbursements i ncurred in connection with an y appeal

. [Empha sis added.]20 The M OU also con tained a choice o f law and ven ue provision , choosing Texas law and stating that “ [a]ny dispute regarding th is MOU shall only be prope r in Ta rrant County. ” [Empha sis added.]
A ccompany ing the MOU were the two IPAs , also dated June 1, 2021, which

were referenced in the MOU an d were identical except for the sellers ’ names . Under
Section 5. 2( a), the sellers agre ed t hat in a breach of the seller s ’ obligations befor e closing, Aquio “ will be entitled [t o] equitable r elie f , including injunctive, i n addition t o all other remedies available at law o r in equity. ”
The IPAs provid ed for closing at Aq ui o ’ s F ort Worth office o n or before August 5, 20 21, with Aquio ’ s option to extend the closing date to August 12, 20 21. Among oth e r th in gs , Aquio had to deliver at closing “ [a]ll other documents, instruments or writings required to be del iv ered to Sellers at or prio r to Closing
pu rsuant to th is Agreement and the [MOU ] entered into by and bet ween the parties
of eve n d ate herewith

. ”
T he arbitration clause at i ssue, s et out in the “ Miscellaneous ” section of the IPAs, state d , 8.3 Dispute Resolution. The part ies herby agree that any di spute rega rdi ng the rights and oblig atio ns of any party under this Agree ment must be resolved first, by s ubmit ting the matter to mediation with the American Arbitration Assoc ia tion (“ AAA”) or other third party mediator mutually a cceptable to the parties, a nd if medi ati on is unsuccessful, the n by arbitration pursuant to t his Se ction 8.3

. Within seven (7) days of an y party’s written notice to the other of its d esire to submit an y dispute to arbitration, the parties will meet to atte mpt to amicably resolve the ir differe nce s and, failing such res olut ion,21 the parties may submi t the matter to mandatory and binding a rbitr ation with AAA

. The issue(s) in dispu te shall be settled by arbi tr ation i n Fort Worth, Texas, in accordance with the Co mmercial Arbitration Rules of AAA, by
a single arbitrator. The only issue(s) to be determined by th e arbitrator will be those issue s spec ifically submitted to the arbitrator. The arbi trator will not ex te nd, mod ify or suspend any of the terms of this Agreem ent. The arbitration shall be governe d b y the United States Arb itra tion Act, 9 U.S.C. § 1– 16, and j udgment upon the award rendered b y the arbitrator may be entered by any cou rt having jurisdiction ther eo

f

. A de termination of the arbitrator shall be by majority vote.

. . . . Thi s agreement to arbitrate is specifically enforceable

. Judgment upo n any award rendered by the arbitrator may be entered in any court having juris diction. Th e decision of the ar bitrato r within the scope of the submission is final and binding on all parties, and any rig ht to judicial action
on a ny matter subject to arbitra tion h ereunder hereby is waived (unles s ot herwise provided by applicable law), except suit to enforce this a rb itratio n award or in the event arbitration is not available for any rea son . I f the rules of the AAA differ from those of this Section 8.3, the pro vision s of this Section 8.3 will contr o l. The costs of arbitration shall be sha red by the parties. [Emphas e s added.] Immediately following Section 8.3 was Section 8 .4, “ Remed ies at Law or i n Equity ,” stating that if any of the sellers ’ representations were material ly untrue , misleading, or b re ached, Aquio may proceed to protect and enforce its rights by suit in equity or action at law , whether for the specific performance of any term contai ned in this Ag reement or for an injunction against the bre ach of any such te rm or in aid o f the exercis e of any power granted in this Agreement, or to enforce any other legal or equitable right of [ Aquio] , or to take any one or mo re o f such actio ns. [Empha sis added.]
The IPA s fu rther provided for Texas law to govern a nd contai ned a merger clause
that the a gr eement and “ all exhibits and sched ules attached herein ” embo died the22 parties ’ entire agreement, and that the headings in the agreement were for
conveni ence only and not part of the agreemen t.
One o f the exh ibits to the FWC IP A was an unexecuted employm en t agreement between FWC and Carol Elder providing that, i n the event of breach, the
compa ny was entitled to immediate injunctive relief “ in addition to any other legal or
eq uitable r elief ” to which it would b e entitled. Choice of law was Texa s, and venue

w as set in Ta rrant County. A n unexe cute d employment agreement bet ween C BC and
Scott Elder , with the sa me provisions, was included a s an exhibit to the C BC IPA

. A nother exhibit to ea ch IPA was a n unexecuted non

- competition agreement , and it provide d that t he agreement was governed by Texas law and t h at [ e ] ach of the parties hereby irrevocabl y submits in any suit, action or proce ed ing aris ing out of or r elat ed to t his Agreement to the e xclusive jurisdiction of the courts of general jurisdiction located in T ar rant County, Texas and waives a ny an d all objections to jurisdiction that it may have under the laws o f the Sta te of Texas or the Unit ed States. [Emp hasi s added .]
It further state d , The non

- prevailing party shall be liable to , and will pay th e prev a il ing party, for al l costs and expenses, including, but not limited to, reasonable attor neys ’ fees incu rred by the prevailing par t y in th e enforcement , d efe nse or interpretation in any respect of any o f its rights under this A g reement, whether in li tigatio n or otherwis e . [Emphasis added.] The FW H IPA also con tained as an exhibit the S PE , e xecuted by the parties on June 15 , 2021

. The sale was made continge nt on the “ simultaneous closing of those
certain in terest purchase agreements ” and spelled out the sell er ’ s and buyer ’ s remedies

. It contain ed a merger clause stating that it was the entire a greement23 between the parties “ relating to the transaction contemp lated hereby. ” And it

c ontained an at torney ’ s fees clause, stating , Should any party hereto employ an a tt or ney for p urpose of e nforcing or construing this Agreeme nt, or any j udgm ent based on this Agreement, in any legal proceeding wh at soever, including i ns olvency, bankr uptcy, arbitration , dec l arato ry relief or other li tigation , the p revailing party shall be e ntitled to receive fro m the other party or parties theret o reimb ursement for all reasonable att orneys ’ fees and all costs, whether incurred at the tria l or appell ate level, including but n ot lim ited to service of process, filing fees, court and court rep or ter costs, investigati ve costs, expert witness fees and the cost of any b onds, whether taxable or not , and such reimbursement shall be included in any judgment, d ecree or final order issue d in t hat proceeding. The

“ prevailing party ” means the party in wh os e favor a j udgment, de cree, or final order is rendered. [ Emphas e s added.] This agreement also contain ed a jury

- trial waiver, st ating,
PURCHASER AND SE LLER HEREBY KNOWINGL Y , VOL UNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPEC T OF ANY LITI GATION BASED HERE ON, ARISING OUT OF , UNDER OR IN CO NNECTION WITH THIS AGREEMENT OR ANY DOCUMENTS CONT EMPLATED TO BE EXECUTE D IN CONNECTION HEREWIT H

. . . . Each party hereby authorizes and empo wers the other to file this Section 1 6.14 and this A gre eme nt wit h the clerk or judge of any court of compe tent jur isdiction as a written consent to waiver of jury trial. [Emphasis in italics added.]
F. Analys is Appellan ts argue that they submitted an authent icated copy of the parties ’ IPAs

t hat bot h provide th a t “ any dispute re garding the right s an d o bligations of any party under this Agreement must be resolved . . . by ar bitration ” and that “[ t]his agreement

to arbitrate is spe cifically enforceable ,” thus me eting th eir burden to establish th e arbit ration agr ee m ent ’ s existence

. They further contend that Aquio igno res relevant24 provisions in Section 8.3 th at make arbi tration mandatory de spite the use of “ may , ”
d irecting us to the words “ man dat ory, ” “ final , ” and “ binding ” t o support their

a rgum en t that arbitrati o n i s mandatory rather than permissive. T hey claim that an interpretation of permissiv e arbitr ation would render S ection 8. 3 ’ s inclusion meaningless. Appe ll ants also contend that Se ction 8.3 does no t conflict with the venue
pr ovisions in either the LOI or the SPE because Section 8.3 can be construed to fix
venue in Tarra nt Co u nty courts if arbitration is waived or for proceedings to enforce
an arb itration a wa rd. They argue tha t t he IPAs are dated four months after the L OI, which was superseded by th e MOU , a n d that both IPAs contain a merge r clause ; th us, th e L OI ’ s venue provision did not supers ede or revoke Section 8.3 ’ s arb itr ation
agreem ent
. And they poin t o ut that the SPE speci fically pr ovides for the recovery of
attorney ’ s fees and costs by the prevai lin g p arty in “ arbitration. ” 14 Aq uio responds that Appel la nts failed to meet their thresh old burd e n . We construe th e pa rti es ’ various instruments toget her because they were generated for the same purpose and sam e transaction

. See R i e der , 603 S.W. 3d at 94

– 95

. H aving closely reviewed the parties ’ agreements , we agree with the t ri al cour t that

— to the extent that consider i ng t he remaining instruments do es not de monstrate a failure

14

Arbitration, in that context, is part of a senten ce a warding t o the prevailing party r eimbursement f or attorney ’ s fees and all cost s “ in any leg al proc eedin g wha tsoever, including insolvenc y, bankruptcy, arbitration, declaratory relief or other li tigation. ”25 of the “ meeting of the minds ”

— the arbitration clause is permissive rath er tha n

man dat ory. To hold otherwise would ignore substantial other provisions in the
part ies ’ i nstrument s and their various u sag e s of “ s hall ” instead of “ may ” :

• The LOI did not mention arbitration , provided that it was enforceable “ in a proceeding at law o r in e quity , ” and s tated that venue for any dispute related to it

“ shall only be proper ” i n the state courts.

• The M OU d id not mention arb itration but provided that in the ev ent of a dispute , if “ an action is filed, ” t he prev ailing party would be entitl ed to re cover “ it s court costs and reasonable attorney s ’ fees, ” including appeal.

• IPA Section 8.4, imme diat ely bel ow the ar bit ration clause at issue, stated that in
th e event of breach, Aquio “ may proceed to protect and enforce its rights by su it in equity or action at la w . ” 15 [Emp hasis added.]

• The IPAs incor porated all the exhibits attach e d to them

. The two unexecuted employment agreements attached to the IPAs referenc ed legal and equitable relief
under Te xas law in Tarrant County.

15 Appellants do not address this provisio n in their opening brief

. Aquio points it out in its appellee ’ s brief. In their reply br ief , Appellants contend t h at Aquio wa ived this argument because it was not raised in the trial court , ignoring that all the ins t ruments were before th e t rial court , which was con cerned wi th the constru ction of

“ may, ” the same verb used in Section 8 .4. Appe llants also argue in thei r reply brief that Section 8.4 works with Section 8.3 to authorize the arbitrator to award these re m edies , relying on the s ect ion ’ s heading and ignori ng the IPA s ’ provision that the headin gs a re for convenience only and not part of the agreement.26 • The unexecuted noncompete agree ment s at tached to the IPAs prov ided that ea c h
par ty “ irrevocabl y submit[ted] in any suit, acti on or proceeding . . . to the exclusive jur is diction of the court s of ge neral jurisdiction located in Tarrant County ” and made the nonprevaili ng party liable for reaso nab le attorney ’ s fees “ whe ther in litig ation o r otherwise

. ” [Emphasis added.]

• The executed SPE contained an attorney ’ s fee clause that applie d to “ any le g al
proce eding what soever, including . . . arbitration, de cl aratory relief or other litigat ion ” and cov e r ed reas onable attor ney ’ s fees and costs “ whether incurred at the trial or appellate level. ” [ Emphasis add ed.]

• T he executed SPE also contained a jury

- tria l waiver “ in respect of any litigation
bas e d hereon, arising out of , u nder or in conne ction w ith this agr eement or any doc uments contemplated to be e x ecuted in connection herewith. ”
Because we must constru e the parties ’ contract as a whole, see Baby Dolls , 6 4 2 S.W.3d at 587, using its plain lan guage and con sidering its context, see Whata burger , 6 45
S.W.3 d at 194, we agree with the trial court that “ may ” as used here is permissive rather than mandatory , indi cat ing that the parties

— particularly Aquio

— c ould s eek

a ltern ative dispute resolution but wer e not required to do so. Contrary to Appellants ’
arguments, we cannot give Section 8.3

— a single provision found in t wo of the multi

part agreement s

— c ontrol ling effect in light of the remaining instrument s , particul arly as they show that the partie s under stood how to use “ shall ” in those var ious27 instruments if “ sha ll ”

— rather than “ may ”

— i s what they intended

. See id. Furt her , Section 8 .4

— immediately below the arbitration clause

— e xpressly gave Aquio the right to sue in cou rt. Accordingly, we overrule Ap pellants ’ first issue and do not reach thei r

re maining arguments o r t h ei r second issue. See T ex . R. App. P. 47.1.
I II. Con clu sion Having overr uled Appellant s ’ first, dispo sitive issue, we affirm the trial court ’ s orde r , lift our September 20, 2 023 stay , and remand the case for further proce edings

. /s/ Wade Bir dwell
Wade Birdwell Justi ce Delivered: June 13, 2024