## In the Cour t of Appeals Second Appellate D istrict of Texas at Fort W orth

___________________________ No. 02

- 20

- 00068

- CV

___________________________

On Appeal from County Court at Law No. 3 Tarrant County, Texas Trial Court No. 2019

- 009601

- 3
Before Birdwell, Bassel, and Womack, JJ. Memor andum O pinion by Justic e Birdwell 

### D OUGLAS 

### G REENE 

### , Appellant

V


### . D ISCOVER 

### B ANK 

### , Appellee2 MEMORANDUM OPINION Dougla s Greene appe als f r om an order denying his m otion to compel arbitration under the F ede ral Arbitration Act ( FAA )

. See Tex. Civ. Prac. & Rem. Code Ann. § 51.016 ; see also 9 U.S.C.A. § 16(a) (1 )

. At tri al, a ppellee Discover Bank did not

o p pose arbi trating the claim; instead, i t argued t hat as the part y seeking arbi tration, Greene should be ordered to initiate the ar bitration and pay the correspo nding fee

. T he Bank did not fil e a b r ief in th is appeal, but it d id file a motion in which it again i ndicated its a menabili ty to arbitrate ; it also asked us to order a bate ment of the suit so that Greene co uld initiate and pay for arbi tration. Although w e denied the motion , we

n evertheless reverse the trial cou rt ’ s order denying t he motion to compel arbitration

. Background The Bank sued Greene to recover amounts it cl aimed were due on a credit car d

acco unt. The da y after filing an answer containing both general an d s p ecific de nial s and affirmative defenses , Gree ne filed a motio n to compel arbitration i n accordance with the cre dit car d agreement , which he attached to his motion

. T h e agreement provides i n part , under a lengthy section entitled “ ARBIT RATIO N , ” I n th e event of a dispute between you and us a rising out o f or rela ting to this Acc ount or the re lationships resu lting from this Account or any othe r d i spute between you or us ( “ Claim ” ), eit her you or we may choose to r esolve the Claim by binding arbit r ation , as described below, instead of in co urt. Any Claim (e x cept for a claim challenging the vali dity or enforceability of this arbitr ation agreement, includin g the Class Action Waiver) may be resolved by bi nding arbitration if either side r e quests it

. T H IS MEANS IF EITHER YOU OR WE CHOOSE ARBITRA TION, NE ITHE R PARTY SHALL H AVE THE RIGHT TO LITIGATE3 SU CH CLAIM IN COURT OR TO HAVE A JURY T R I A L. ALSO DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION. Even if all parties have opted to litigate a Claim in court, you or we may elect arbitration with respect t o an y Claim made by a new party or any new C laims later asserted in that lawsuit.

. . . . Fees and Costs. If you wish to begin arbitration against us but you cannot afford to pay the organization ’ s o r arbitrator ’ s costs, we will advance those costs if you ask us in writ ing. [Emphas e s added.] Greene d id not file a count erclaim against the Bank or engage in any discovery

. At the heari ng on the m otion to compel, the Bank ’ s c ounsel asserted that Greene “ wants to initi ate arbitrat ion and, I guess, have us pay for it. We fee l like this is not equitable. ” The Ban k did not disp ute t hat it s claims a g ainst Greene are arbitra ble under the credit card agre e ment ; instea d, co u nsel told the trial court, “ If they want to take this to arbitration, if that is their election, we feel they should have to bear the bu rden of performing all of the filing and the organization and the filing fees, and whatever other costs upfront for the arbitration. ” T he trial court d id not addr ess the payment issue. Instead , it construed the arbitration langu age in the agree ment to mean that once on e of the parties to the agreement had e lected to sue in court, that pa rt y ’ s claim was no longe r subject to arbitration : “ I just think this is pre

- sui t. I don ’ t believe you can begin a lawsuit and then invoke the rig ht of arbitratio n. ” Thus, t he trial court denied Greene ’ s motion.4 Stand ard of R eview and Applicable Law W e review the den i al of a motion to compel arbitration for an abuse of d iscretion , deferring to the trial court ’s factual determination s if they are sup po rted by

e vi dence but revi ewing its le gal determinations de novo

. Henry v. Cash Biz, LP , 551 S.W.3d 111, 115 (Tex. 2018)

. W e review de novo w hether the claims in di spute fall within the scope of a valid arbitration ag reement
. Id. We construe a rb itration a g reements according to con tract

- construction principles

. AT & T Mobility LLC v. Concepcion , 563 U.S. 333, 339, 131 S. Ct. 1740, 1745 (2011) . Thus, we must ascertain the partie s ’ true intent as expressed by the plain language they used. See Great Am. Ins. v

. Primo , 512 S.W.3d 890, 8 93 (Tex. 2017). In doing so, we must examine t he entire agreement to try to harmonize and give e ffect to all contractual provisions so tha t none will be meaningless. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co. , 995 S.W.2d 647, 6 5 2 (Tex. 1999)

. We give a contract term its plain and ordinary meaning unless the contract indicates the parties intended to give it a different meaning. Reeder v. Wood C ty. Energy , LLC , 395 S.W.3d 789, 794

– 95 (Tex. 2012). Because c ontract construct ion is a utilita rian exercise , we must be ar in mind the particular business activity sought to be served. Reilly v. Ranger s Mgmt

. , Inc. , 727 S.W.2d 527, 530 (Tex. 1987).5 A nalysi s Greene ’ s three is sues on appeal complain about the trial court ’ s construction of th e arbitra tion prov ision. 1 We agree that in accordance with the agreement ’ s plain la nguage, th e trial cou r t erred by deter m ining that the arbitration agreement appli es onl y before a party files suit

. The italicized language , when read in cont ext with the

re mainder o f the arbi tration provisi on and the entire agreement, makes cle ar that either party can request binding arbitrat i on of “ [ a ] ny claim ”

–– “ a dispute

. . . a ri s ing

out o f or relating to ” the credit card agreement or “ an y othe r d i spute betwee n ” the part ies

–– not relat ed to enforcea bility or validity of the arbitration provision ; nothing in th at provision limits when that p a rty may invoke it s arbitration right , no r does anything in the a rbitration agreement indicate that a party ’ s right to invoke arbitrati on of a claim d epends on whe ther a nother party has already filed suit

. See, e.g. , SCI Tex. Funeral Servs., L.L.C. v. Mont o ya , No. 13

- 19

- 00088

- CV , 2020 WL 5582367, at * 9 (Tex

. App.

–– Corpus Christi

– Edinburg Sept. 17, 2020, n o pet.) (mem. op.) ( “ [T] he scope o f an arb itration clause [under the F AA ] that incl udes all ‘ disputes, ’ and not just claims, is very broad

. . . . ” ) ; Dewey v. W e gner , 138 S .W.3d 591, 594 , 602 (Tex. App.

–– Ho usto n [14t h D ist.] 2004, no p et. ) ( noting that scope of FAA arbitration agreement pe rtaining

1 A l t hough th e Bank has not challenged the appli cability of the arbi tration provision , a party cannot co ncede a question of la w nec essary to the proper disposition of an appeal. See Hoskins v. F uchs , 517 S.W.3d 834, 841 (Tex. App.

— Fort Worth 2016, pet. deni ed) ; see also City of S an Antonio v. Cortes , 46 8 S.W.3d 580, 583 (Tex. App.

— San An tonio 2015, pet. deni ed) ( “ [T]he applicabil ity o f an arbitration agreement is a question of law

. . . . ” ).6 to “ [ a ] ny controversy or c laim ” is “ quite b road ” ). T h e trial court ’ s conclusion that one party ’ s unilateral elect ion t o f ile su it binds the other party to liti ga te i n court

–– absent waiver, which the Bank d id not allege or prove

–– re ads language int o the agreement that is not there a nd, thus, is not supporte d by the agreement ’ s plain language. See Tenneco Inc. v. Enter

. Prod s . Co. , 925 S.W.2d 640, 646 (Tex. 1996) (“We hav e long held that courts will not rewrite agreements to insert provisions parties could have included or to imply rest raints for which they hav e not bargained.”) ; Nicholas Petroleum, Inc. v. Mid

- Cont inent Cas. Co. , N o. 05

- 13

- 01106

- CV, 2015 WL 4456185, a t *6 (Tex. App.

— Dallas July 21, 2015, no pet.) (mem. op.)

. The Bank contended a t tri a l and o n appeal that Greene should be ordered to initiate th e arbitration and p ay the arbi tration fees. But who pays for arbit ration is an issue f or the arbitrator to decide, absent an express agreement to the contrary

. See Con n Appliances , Inc. v. Jones , No. 05

- 20

- 00149

- CV , 2020 WL 630 4990, at *3 (Tex. App.

–– Dallas Oct. 28, 2020 , no pet. ) (m em. o p.)

. The arbitration agreement do es not expressly st ate which party wil l pay for the cost to initiate arbit ration ot her than to say th at the Bank will do so on Gr e ene ’ s behalf if he makes a writ ten request
. Nothin g in the arbitration agreem ent s uggests that the parties agreed t hat if one elected to sue in

court o n a claim, the other would be required to pay the fee to initiate t he arbitr ation electe d by that party. Therefor e, th e question of who pays is for the arbitrat or to decide , not the trial court
. See i d.7 Accor dingly, we hold that the trial court abused its discretion by denying Green e ’ s motion to compel arbitration . We reverse the trial court ’ s denial of arbi trati on , and we order the tria l judg e to compel arbi tration and stay trial in

accor dance with S e c t i o n 1 7 1

. 0 2 5 o f t h e C i v

i l P r a c t i c e a n d R e m e d i e s C o d e . T e x . C i v . P r a c . & R e m . C o d e A n n . § § 1 7 1

. 0 2 1 ( b ) , ( c ) , . 0 2 5 ; see also Jack B. A nglin Co. v. Tipp s , 842 S.W. 2d 266, 272 (Tex. 1992) (orig. proceeding) ( “ [F]ederal procedure does not appl y in Texas courts, even wh en Texas courts app l y the Feder al [Arbitration] Act

. ” ). /s/ Wade Birdwell Wade Birdwell Justice Delivered: March 4, 2021