Prestonwood Tradition, LP Tradition Management, LLC Prestonwood TSL, LP Prestonwood TSL GP, LLC v. Mary Jo Jennings, Individually and as the Independent and Representative ( 2021 )


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  • Reversed and Remanded and Opinion Filed October 22, 2021
    In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-20-00380-CV
    No. 05-20-00387-CV
    No. 05-20-00388-CV
    No. 05-20-00389-CV
    No. 05-20-00390-CV
    PRESTONWOOD TRADITION, LP; TRADITION MANAGEMENT, LLC;
    PRESTONWOOD TSL, LP; PRESTONWOOD TSL GP, LLC;
    TRADITION SENIOR LIVING, L.P.; TRADITION SL, LLC; AND
    JONATHAN S. PERLMAN,
    Appellants / Relators
    V.
    MARY JO JENNINGS, INDIVIDUALLY AND AS THE INDEPENDENT
    EXECUTRIX AND REPRESENTATIVE OF THE BENEFICIARIES OF
    THE ESTATE OF LEAH ALICE CORKEN; LISA CULLEN,
    INDIVIDUALLY; MATT CORKEN, INDIVIDUALLY; DIANNE
    TANNERY, INDIVIDUALLY AND AS THE INDEPENDENT EXECUTRIX
    AND REPRESENTATIVE OF THE BENEFICIARIES OF THE ESTATE
    OF JUANITA PURDY; THOMAS DUCKER, INDIVIDUALLY; SHERRIL
    KERR, INDIVIDUALLY AND AS THE INDEPENDENT EXECUTRIX
    AND REPRESENTATIVE OF THE BENEFICIARIES OF THE ESTATE
    OF GLENNA DAY; GREGORY B. DAY, INDIVIDUALLY; MARSHA
    SPRING REPP AND STEPHEN SPRING, INDIVIDUALLY AND AS THE
    CO-EXECUTORS AND REPRESENTATIVES OF THE BENEFICIARIES
    OF THE ESTATE OF SOLOMON H. SPRING; MICHAEL SOLOMON,
    MATTHEW ABRAMOWITZ, AND PAUL ABRAMOWITZ,
    INDIVIDUALLY AND AS THE CO-EXECUTORS AND
    REPRESENTATIVES OF THE BENEFICIARIES OF THE ESTATE OF
    JOYCE ABRAMOWITZ; AND MARC ABRAMOWITZ, INDIVIDUALLY,
    Appellees / Real Parties in Interest
    On Appeal and Original Proceeding from the County Court at Law No. 2
    Dallas County, Texas
    Trial Court Cause Nos. CC-19-03747-B
    CC-19-03737-B
    CC-19-03754-B
    CC-19-03757-B
    CC-19-03745-B
    OPINION
    Before Justices Partida-Kipness, Pedersen, III, and Goldstein
    Opinion by Justice Pedersen, III
    Appellants-relators1 bring this appeal and petition for writ of mandamus
    challenging the trial court’s orders granting a stay of arbitration and denying
    appellants’ plea in abatement, which sought an order for the parties to attend
    arbitration. On appeal, appellants raise four issues, contending that the trial court
    abused its discretion in (i) deciding the arbitrability issues, (ii) staying arbitration,
    (iii) declining to order the parties to arbitration, and (iv) striking a supporting
    affidavit attached to appellants’ plea in abatement. In their petition for writ of
    mandamus, appellants assert the trial court abused its discretion in issuing its orders
    because the claims can be arbitrated under Texas common law.
    We agree with appellants and reverse the trial court’s orders. We remand the
    causes with instructions to order the parties to arbitration and stay the underlying
    cases pending the outcome of the arbitration. We dismiss appellants’ petition for writ
    of mandamus as moot.
    1
    Prior to submission, we consolidated relators’ original proceeding, cause number 05-20-00619-CV,
    into the 05-20-00380-CV cause.
    –2–
    I.     BACKGROUND
    A. Parties and History Before Litigation
    In 2016, Leah Corken, Juanita Purdy, Glenna Day, Solomon Spring, and
    Joyce Abramowitz died while they were residents of The Tradition-Prestonwood, a
    senior living community owned and operated by appellants. The decedents had
    signed written leases with appellants, which provide:
    7.     Your Rights and Responsibilities
    ....
    E.     Waiver of Jury Trial. Pursuant to the Arbitration
    Agreement set forth in Section 8 below, EACH PARTY HERETO
    WAIVES ITS RIGHT TO A TRIAL BY JURY AND AGREES TO
    SUBMIT TO BINDING ARBITRATION in any action, proceeding or
    counterclaim brought by any party against any other party.
    ....
    8.     Arbitration Agreement
    A.     Agreement To Arbitrate. Should a dispute arise between
    us, we desire to avoid costly and time-consuming litigation. Landlord
    and You agree that any claims, controversies, or disputes arising
    between us and in any way related to or arising out of the relationship
    created by this Agreement shall be resolved exclusively by binding
    arbitration. . . . . Accordingly, neither Landlord nor You will be
    permitted to pursue court action regarding these claims, controversies,
    or disputes.
    B.     Conduct Of The Arbitration. The arbitration shall be
    conducted by a panel of either one or three neutral arbitrators (the
    “Panel”), said number being chosen by You. The member(s) of the
    Panel shall be chosen by the American Arbitration Association
    (“AAA”) or by mutual agreement between the parties. . . . . The Panel
    shall follow the current Commercial Arbitration Rules of the AAA.
    ....
    E.     Waiver Of Jury Trial. Any claim, controversy, or dispute
    between the parties for which arbitration is not allowed by law shall be
    brought in an appropriate court before a judge. Both You and Landlord
    waive your rights to a trial by jury.
    –3–
    F.     Applicability To Related Parties. You and Your
    Authorized Representative agree that this Agreement, in particular this
    Section 8, shall be binding upon them personally. This Agreement shall
    be binding upon and inure to the benefit of all persons whose claim is
    derived through or on behalf of You, including that of the [sic] Your
    family, heirs, guardian, executor, administrator and assigns. This
    Agreement shall be binding upon and inure to the benefit of Landlord,
    Tradition Management, LLC, and its subsidiaries and their respective
    directors, officers, employees, representatives, or agents.
    THIS AGREEMENT CONTAINS BOTH AN ARBITRATION
    PROVISION AND A WAIVER OF JURY TRIAL, WHICH MAY
    BE ENFORCED BY THE PARTIES.
    9.     MISCELLANEOUS
    ....
    G.     Governing Law. Except as noted above, this Agreement
    shall be governed by and construed under the laws of the State of Texas.
    (emphasis in original).
    Appellees-real parties in interest are individuals and representatives of the
    estates of the decedents who sought to resolve claims against appellants related to
    the decedents’ deaths. The parties attended mediation, and appellants invoked the
    above arbitration agreements. On June 17, 2019, appellants filed arbitration actions
    with the AAA. On June 25, 2019, appellees responded to the arbitration action before
    the AAA and filed five separate suits in Dallas County Court.
    B. Procedural History of Litigation
    Appellees sued appellants—both individually as wrongful death beneficiaries
    and as executors of the respective estates—for (i) declaratory judgment;
    (ii) negligent undertaking; (iii) premises liability; (iv) general negligence; and
    (v) negligent hiring, training, and supervision. The claims for declaratory judgment
    sought a declaration that appellees’ claims were not subject to arbitration. Appellees
    –4–
    further moved to stay the arbitrations in each case. Appellants answered in the trial
    court and filed pleas in abatement in each case, requesting that the trial court abate
    the case so that arbitration could proceed.
    The record does not indicate that an arbitrator or arbitration panel was ever
    selected. However, on June 28, 2019, the AAA responded to the arbitration
    communications as follows:
    Upon review of the parties’ contentions, the AAA has made an
    administrative determination that it will not proceed with the
    administration of the submissions unless the parties mutually agree, or
    until the issue of arbitrability is decided by the Dallas County, Texas
    Court (“Court”).
    The parties submitted arguments and attached evidence in support of their
    respective motions and responses regarding arbitration. Appellees objected to and
    moved to strike an affidavit from appellants. On September 30, 2019, the trial court
    heard the arbitration motions. Regarding the AAA’s administrative determination,
    the trial court stated, “I don’t think that’s an end all be all on the outcome.” After the
    hearing, the parties submitted further arguments and authorities related to the
    arbitration dispute; appellants responded to appellees’ objections to their affidavit.
    On February 28, 2020, the trial court granted appellees’ requests for stay of
    arbitration and denied appellants’ requests for abatement.2
    IT IS THEREFORE ORDERED that Plaintiffs’ Motions to Stay
    Arbitration in each of the above-captioned matters are GRANTED,
    2
    At the time of the September 30, 2019 hearing, the Salomon/Abramowitz and Repp/Spring cases had
    not been transferred into the trial court. However, both of those cases were transferred to the trial court,
    along with all of the other three cases, before the trial court’s February 28, 2020 order.
    –5–
    and the arbitration proceeding with the American Arbitration
    Association that is currently pending between Plaintiffs and Defendants
    is STAYED.
    IT IS FURTHER ORDERED that Defendant’s Pleas in
    Abatement in each of the above-captioned matters are DENIED [.]
    These interlocutory appeals followed. See TEX. CIV. PRAC. & REM. CODE ANN.
    § 171.098. Appellants further petitioned for writs of mandamus. We have
    consolidated each original proceeding into the corresponding interlocutory appeal.
    II.   ISSUES RAISED
    On appeal, appellants raise four issues to our Court:
    1. The trial court abused its discretion when it decided the arbitrability
    issues, because federal and Texas law require that determination of
    arbitrability issues be referred to the arbitrator, and the Leases
    specifically provide for AAA arbitration.
    2. To the extent the trial court based its decision to stay the arbitrations
    on the Texas Arbitration Act, such decision was an abuse of
    discretion because the FAA, not the TAA, applies.
    3. The trial court abused its discretion when it declined to order the
    parties to AAA arbitration, because the uncontroverted evidence
    established Appellants were entitled to arbitration under the FAA.
    4. The trial court abused its discretion when it struck the affidavit
    supporting of Appellants’ pleas in abatement, as Appellees failed to
    timely object and their objections are without legal basis.
    On petition for writ of mandamus and apart from asserting they have no
    adequate remedy at law, appellants raise one issue to our Court:
    1. If this Court holds the statutory arbitration schemes argued in such
    appeals do not apply, the trial court nevertheless abused its
    discretion in issuing such Order because the claims can be arbitrated
    under Texas common law.
    –6–
    Because our resolution of appellants’ first issue obviates the need to discuss
    the remaining issues, we limit our discussion accordingly. See TEX. R. APP. 47.1
    (“The court of appeals must hand down a written opinion that is as brief as
    practicable but that addresses every issue raised and necessary to final disposition of
    the appeal.”).
    III.    STANDARD OF REVIEW
    “Arbitration agreements can be enforced under either statutory provisions or
    the common law.” Royston, Rayzor, Vickery, & Williams, LLP v. Lopez, 
    467 S.W.3d 494
    , 499 (Tex. 2015) (citing L. H. Lacy Co. v. City of Lubbock, 
    559 S.W.2d 348
    ,
    351 (Tex. 1977)).3 We review a trial court’s order on a motion to stay arbitration for
    an abuse of discretion. Henry v. Cash Biz, LP, 
    551 S.W.3d 111
    , 115 (Tex. 2018)
    (citing In re Labatt Food Serv., L.P., 
    279 S.W.3d 640
    , 642–43 (Tex. 2009) (orig.
    proceeding)). We review the trial court’s legal determinations de novo. In re Labatt
    Food Serv., 279 S.W.3d at 643.
    3
    “[A] dual system of arbitration has existed in Texas, and the statutory method has been viewed as
    cumulative of the common law.” L. H. Lacy Co., 559 S.W.2d at 351.
    –7–
    IV.    DISCUSSION
    Issue One: Whether the Trial Court Abused Its Discretion When It Decided the
    Arbitrability Issues
    i.     Decedents’ Agreement to Arbitrate
    “[W]hen a party seeks to compel arbitration based on a contract, the first
    question is whether there is a contract between the parties at all.” HomeAdvisor, Inc.
    v. Waddell, No. 05-19-00669-CV, 
    2020 WL 2988565
    , at *3 (Tex. App.—Dallas
    June 4, 2020, no pet.) (mem. op.) (citing Arnold v. HomeAway, Inc., 
    890 F.3d 546
    ,
    550 (5th Cir. 2018)).
    Under Texas law, a binding contract requires: (1) an offer;
    (2) acceptance in strict compliance with the terms of the offer; (3) a
    meeting of the minds (mutual assent); (4) each party’s consent to the
    terms; and (5) execution and delivery of the contract with intent that it
    be mutual and binding.
    HomeAdvisor, 
    2020 WL 2988565
    , at *3 (citation omitted).
    Here, it is undisputed that decedents agreed to the leases by signature. Each
    lease shows the decedent agreed to arbitrate and expressly bound “all persons whose
    claim is derived through or on behalf of [decedent], including that of the [decedent’s]
    family, heirs, guardian, executor, administrator and assigns.” In Texas, the death of
    a natural person does not ordinarily extinguish his or her contracts. Solomon v.
    Greenblatt, 
    812 S.W.2d 7
    , 17 (Tex. App.—Dallas 1991, no writ) (citation omitted).
    –8–
    Appellees have brought claims that derive from the decedents’ allegedly
    wrongful deaths. See CIV. PRAC. & REM. § 71.004. In In re Labatt Food Service, the
    Texas Supreme Court explained:
    While it is true that damages for a wrongful death action are for the
    exclusive benefit of the beneficiaries and are meant to compensate them
    for their own personal loss, the cause of action is still entirely derivative
    of the decedent’s rights. TEX. CIV. PRAC. & REM. CODE §§ 71.003(a),
    .004(a); Russell, 841 S.W.2d at 347. Thus, regardless of the fact that
    [decedent]’s beneficiaries are seeking compensation for their own
    personal loss, they still stand in [decedent]’s legal shoes and are bound
    by [his or her] agreement.
    279 S.W.3d at 646. Thus, regarding appellees’ wrongful death claims, they are
    bound by the decedents’ agreements. See In re Golden Peanut Co., L.L.C., 
    298 S.W.3d 629
    , 631 (Tex. 2009) (orig. proceeding) (per curiam) (wrongful death
    beneficiaries are bound by decedent’s pre-death arbitration agreement “because,
    under Texas law, the wrongful death cause of action is entirely derivative of the
    decedent’s rights”); Arredondo v. Dugger, 
    347 S.W.3d 757
    , 764 (Tex. App.—Dallas
    2011), aff’d on other grounds, 
    408 S.W.3d 825
     (Tex. 2013) (“A statutory wrongful
    death claim is wholly derivative of the decedent’s claim and is subject to any defense
    that would have been available against the decedent had they survived.”).
    In addition, appellees asserted survival claims that derive from the decedent’s
    rights. See CIV. PRAC. & REM. § 71.021. “The purpose of the survival statute is to
    continue a decedent’s cause of action beyond death to redress the decedent’s estate
    for decedent’s injuries.” Stevenson v. Ford Motor Co., 
    608 S.W.3d 109
    , 131 (Tex.
    –9–
    App.—Dallas 2020, no pet. h.). “The survival action, as it is sometimes called, is
    wholly derivative of the decedent’s rights.” Russell v. Ingersoll-Rand Co., 
    841 S.W.2d 343
    , 345 (Tex. 1992) (explaining that if decedent’s action for injuries would
    have been barred by limitations had it been asserted immediately prior to his death,
    survival action and wrongful death actions based on same alleged wrong are likewise
    barred); see also Brown v. Shwarts, 
    968 S.W.2d 331
    , 334 (Tex. 1998) (explaining
    parents’ survival action “as wholly derivative of [child]’s, the injury is that which he
    suffered, and the damages are those he sustained while he was alive”). “A defendant
    can raise the same defenses in the survivorship action that it could assert against the
    injured person.” Waters ex rel. Walton v. Del-Ky, Inc., 
    844 S.W.2d 250
    , 254 (Tex.
    App.—Dallas 1992, no writ). Arbitration and award is an affirmative defense, which
    appellants (i) have raised against appellees and (ii) could have asserted against the
    decedents. See TEX. R. CIV. P. 94; see, e.g., Nabors Drilling USA, LP v. Pena, 
    385 S.W.3d 103
    , 109 (Tex. App.—San Antonio 2012, pet. denied) (explaining
    decedent’s family’s wrongful death and survival actions against employer were
    subject to arbitration agreement between decedent and employer); In re Jindal Saw
    Ltd., 
    264 S.W.3d 755
    , 766–67 (Tex. App.—Houston [1st Dist.] 2008, orig.
    proceeding), (explaining that decedent’s arbitration agreement with his employer
    stating to bind his “heirs, beneficiaries and assigns” bound decedent’s widow to the
    arbitration agreement) mand. granted, 
    289 S.W.3d 827
     (Tex. 2009) (per curiam).
    –10–
    As appellees’ survival actions arise from the decedents’ rights—brought on
    behalf of the decedents—those claims are subject to the decedents’ arbitration
    agreements. See Waters ex rel. Walton, 844 S.W.2d at 254. Furthermore, as Section
    8.F. indicates, the leases expressly anticipated such a result. Thus, regarding
    appellees’ survival actions, they are bound by the decedents’ agreements.
    Accordingly, we must conclude that appellees are bound by the decedents’
    arbitration agreements in the leases.
    ii.      Arbitrability
    A trial court generally determines the arbitrability of an arbitration agreement,
    unless the parties clearly and unmistakably provide otherwise. First Options of
    Chicago, Inc. v. Kaplan, 
    514 U.S. 938
    , 944, (1995).4 “Where the parties’ contract
    clearly and unmistakably delegates the arbitrability question to the arbitrator, the
    court possesses no power to decide the arbitrability issue.” HomeAdvisor, 
    2020 WL 2988565
    , at *5 (citing Robinson v. Home Owners Mgmt. Enters., Inc., 
    590 S.W.3d 518
    , 532 (Tex. 2019)).
    Appellants assert that the language in the leases incorporated (i) “any claims,
    controversies, or disputes” and (ii) the AAA’s Commercial Arbitration Rules by
    reference, such that arbitrability is an issue for the arbitrator to decide. In response,
    4
    See also RSL Funding, LLC v. Newsome, 
    569 S.W.3d 116
    , 120 (Tex. 2018) (“The U.S. Supreme
    Court has explained that there are three types of disagreements in the arbitration context: (1) the merits of
    the dispute; (2) whether the merits are arbitrable; and (3) who decides the second question. . . . The default
    rule for the third question is that arbitrability is a threshold matter for the court to decide.” (first citing First
    Options, 
    514 U.S. at 942,
     and then citing Forest Oil Corp. v. McAllen, 
    268 S.W.3d 51
    , 61 (Tex. 2008))).
    –11–
    appellees, without authority, assert that the threshold question of arbitrability
    necessitates a determination of whether the FAA or the TAA applies. Appellees
    incorrectly rely on RSL Funding, LLC v. Newsome to assert that the trial court—and
    not the arbitrator—must determine that threshold issue before any jurisdiction or
    authority can even arguably be delegated to an arbitrator. 
    569 S.W.3d 116
    , 121–24
    (Tex. 2018).
    To the contrary, in RSL Funding, the Texas Supreme Court explained:
    Arbitrators are competent to decide any legal or factual dispute the
    parties agree to arbitrate.
    ....
    [A]s parties have a right to contract as they see fit, they may agree to
    arbitral delegation clauses that send gateway issues such as arbitrability
    to the arbitrator.
    ....
    [W]e have held that parties may contract to arbitrate issues even when
    the law vests some related exclusive power in a court.
    ....
    Here, the courts below have not questioned the validity of parties’
    arbitration clause. We thus have no choice but to send this dispute to
    arbitration for the arbitrator to at least decide arbitrability.
    569 S.W.3d at 121–23 (internal citations omitted, emphasis added).5 In
    HomeAdvisor, we addressed arbitrability of a contract that incorporated the AAA’s
    Commercial Arbitration Rules:
    [A]rbitration procedures specified that any arbitration would be
    administered by the AAA and governed by the AAA’s Commercial
    Arbitration Rules. The AAA rules expressly delegate the issue of
    arbitrability to the arbitrator. This Court and many others have held that
    5
    We note the arbitration provision in RSL Funding did not involve the AAA or incorporate its
    Commercial Arbitration Rules. See generally RSL Funding, 569 S.W.3d at 119.
    –12–
    a bilateral agreement to arbitrate under the AAA rules constitutes clear
    and unmistakable evidence of the parties’ intent to delegate the issue of
    arbitrability to the arbitrator. Arnold, 890 F.3d at 553; Saxa Inc. v. DFD
    Architecture Inc., 
    312 S.W.3d 224
    , 229-30 (Tex. App.—Dallas 2010,
    pet. denied).
    
    2020 WL 2988565
    , at *5.
    As in HomeAdvisor, the record here shows the decedents’ leases, which were
    bilateral agreements, included an arbitration provision that clearly informed, with
    emphasized text, the decedents that (i) they were waiving their right to jury trial and
    (ii) their rights would be determined by a panel of either one or three neutral
    arbitrators. However, no arbitrator was selected. The scope of the arbitration
    provisions expressly included that “any claims, controversies, or disputes arising
    between us and in any way related to or arising out of the relationship created by this
    Agreement shall be resolved exclusively by binding arbitration.” As in
    HomeAdvisor, the arbitration provisions in the leases specify that any arbitration
    would be administered by the AAA and governed by the AAA’s Commercial
    Arbitration Rules.6
    Thus, we must conclude appellants have established the existence of an
    arbitration agreement between them and appellees. Appellants have established that
    6
    The record includes the AAA’s Commercial Arbitration Rule R-7, which provides, in part:
    The arbitrator shall have the power to rule on his or her own jurisdiction, including any
    objections with respect to the existence, scope, or validity of the arbitration agreement or
    to the arbitrability of any claim or counterclaim.
    See, e.g., Saxa Inc. v. DFD Architecture Inc., 
    312 S.W.3d 224
    , 228 (Tex. App.—Dallas 2010, pet. denied)
    (discussing AAA rules); PER Group, L.P. v. Dava Oncology, L.P., 
    294 S.W.3d 378
    , 386 (Tex. App.—
    Dallas 2009, no pet.) (discussing Commercial Arbitration Rule R-7).
    –13–
    all defenses to arbitration, including validity of the arbitration provision, were
    delegated to the arbitrator. The record shows no arbitrator decided arbitrability.
    Accordingly, the trial court erred in granting appellees’ motions to stay arbitration
    and in denying appellants’ pleas in abatement. See HomeAdvisor, 
    2020 WL 2988565
    , at *5. We resolve appellants’ first issue in their favor. Because of our
    resolution of this issue, we pretermit further discussion on and do not reach the
    remaining issues on appeal and the sole issue on petition for writ of mandamus.7
    V.      DISSENT ACKNOWLEDGMENT
    The Dissent asserts that our adjudication of the issues in this case conflicts
    with our prior opinion in Roe v. Ladymon, 
    318 S.W.3d 502
    , 513 (Tex. App.—Dallas
    2010, no pet.).8 Relying on Roe, the Dissent opines that, because appellees did not
    individually sign the decedents’ leases, appellees (i) were non-signatories to the
    contract (ii) without clear and unmistakable evidence that they authorized an
    arbitrator to decide the gateway question of arbitrability. We limit our discussion to
    distinguishing Roe from the case at bar and offer no discussion on the remaining
    issues in this case.
    In Roe, we considered who had the primary power to decide whether
    appellants could compel the appellees to arbitrate claims: a court or an arbitrator.
    7
    Not only is further discussion unnecessary, imparting further opinion risks providing an advisory
    opinion when it is not our question to decide.
    8
    We note neither appellants nor appellees rely upon Roe.
    –14–
    See Roe, 
    318 S.W.3d at 511
    . Roe contracted with Metro LLP to renovate her home,
    and Ladymon signed the contract “in his capacity as a partner of Metro LLP.” 
    Id. at 507
    .9 This contract included an arbitration provision. 
    Id.
     “Unsatisfied with the
    remodeling work, Roe demanded arbitration against both Metro LLP and Ladymon.”
    
    Id. at 508
    . The parties attended arbitration, and the arbitrator ultimately signed an
    award in favor of Roe against Metro LLP and Ladymon—jointly and severally liable
    for Roe’s damages. 
    Id. at 509
    . The trial court confirmed the arbitration award but
    stated the following as to the award against Ladymon, individually:
    Defendant Ladymon timely and properly objected to the arbitrator
    regarding the arbitrator’s lack of jurisdiction over him in a personal
    capacity. Furthermore, whether or not Defendant Ladymon was
    personally liable for the debts of defendant [Metro LLP] is a separate
    issue from whether or not Defendant Ladymon was bound by the
    arbitration clause.
    
    Id. at 509
    . The trial court further held
    that the arbitrator exceeded his authority in rendering an award against
    Ladymon individually, stating: “The arbitrator was without jurisdiction
    and the determination of the arbitrator’s jurisdiction is a matter of
    arbitrability under First Options of Chicago, Inc. v. Kaplan, 
    514 U.S. 938
    , 
    115 S. Ct. 1920
     [
    131 L.Ed.2d 985
    ] (1995) and is exclusively
    reserved to this Court.”
    
    Id.
     In first addressing the applicability of an arbitration agreement, we explained:
    Disputes about the scope of an arbitration agreement are resolved in
    favor of arbitration. However, this presumption favoring arbitration
    arises only after the party seeking to compel arbitration proves that a
    valid arbitration agreement exists.
    9
    Metro LLP later converted to a limited partnership, with Ladymon serving as a limited partner. Roe,
    
    318 S.W.3d at 507
    –08.
    –15–
    Like other contracts, nonparties are normally not bound by arbitration
    agreements between others. But just as other contracts can become
    binding on nonparties, principles of contract law and agency may bind
    a non-signatory to an arbitration agreement. Thus non-signatories to a
    contract containing an arbitration clause may be required to arbitrate if
    rules of law or equity would bind them to the contract generally. See In
    re Labatt Food Serv., L.P., 
    279 S.W.3d 640
    , 644 (Tex. 2009); see also
    In re Weekley Homes, L.P., 
    180 S.W.3d 127
    , 131 (Tex. 2005) (“Indeed,
    if Texas law would bind a nonparty to a contract generally, the FAA
    would appear to preempt an exception for arbitration clauses alone.”)
    
    Id. at 511
     (internal citations and quotations omitted).10 In Roe, we further discussed
    whether a non-signatory to an arbitration agreement could be required to arbitrate.
    [A] court should decide whether an arbitration contract binds a person
    who did not sign the contract.
    While non-signatories to an arbitration agreement can be bound to
    arbitrate under principles of contract and agency law, such issues—
    dealing as they do with non-signatories—are gateway “issues of
    arbitrability” that the courts are primarily responsible for deciding—
    not the arbitrator. And only if the non-signatory has “clearly and
    unmistakably agreed” to submit that issue to arbitration will the courts
    be bound to a deferential review of the arbitrator’s decision that the
    non-signatory is bound by the arbitration agreement.
    
    Id. at 515
     (internal citations omitted). We concluded Roe had not shown that
    Ladymon “‘clearly agreed to have the arbitrator [ ] decide (i.e., to arbitrate) the
    question of arbitrability.’” 
    Id. at 517
     (quoting First Options, 
    514 U.S. at 946,
    ). We
    10
    Unlike the contract claims in Roe, In re Labatt Food Services and In re Weekley Homes involved
    wrongful death and personal injury. In re Labatt Food Serv., 279 S.W.3d at 649 (holding “the arbitration
    provision in an agreement between a decedent and his employer requires the employee’s wrongful death
    beneficiaries to arbitrate their wrongful death claims against the employer even though they did not sign
    the agreement”); In re Weekley Homes, L.P., 
    180 S.W.3d 127
    , 135 (Tex. 2005) (recognizing that a
    “nonparty may be compelled to arbitrate if it deliberately seeks and obtains substantial benefits from the
    contract itself” in discussion of a personal injury claim where claimant demanded compliance with the
    contract).
    –16–
    rejected the argument that Ladymon’s execution of the contract on behalf of Metro
    LLP was evidence that “he clearly and unmistakably agreed the arbitrator could
    decide whether he is bound to arbitrate claims against him individually.” 
    Id. at 516
    (emphasis added).
    The Dissent opines that appellees in this case are in the same position as
    Ladymon in Roe because “both are non-contracting parties because they did not sign
    the leases.” See 
    id. at 517
    . The result of the Dissent’s rule suggests that nonparties
    to a contract containing an arbitration provision can never be bound by arbitration
    agreements they did not individually sign—an argument the Texas Supreme Court
    has repeatedly rejected. See In re Labatt Food Serv., 279 S.W.3d at 644; see also In
    re Weekley Homes, L.P., 
    180 S.W.3d 127
    , 131 (Tex. 2005). Here, appellees’
    positions in the instant case are distinguishable from that of Ladymon in Roe.
    Unlike Roe—in which neither Metro LLP nor Ladymon agreed to subject
    Ladymon to the contract—the decedents here agreed to arbitrate and explicitly bind
    “all persons whose claim is derived through or on behalf of [decedent], including
    that of the [decedent’s] family, heirs, guardian, executor, administrator and assigns”
    to the leases. Unlike Ladymon—who sought to avoid liability under a contract he
    was not a party to—appellees’ claims of wrongful death and survival action derive
    from the respective decedents, who each agreed to arbitration. Thus, appellees are
    not acting as non-signatories to the decedents’ agreements with appellants. Instead,
    appellees have asserted claims that can only be raised (i) by stepping into the
    –17–
    decedents’ legal shoes or (ii) by the decedents—as appellees have done on behalf of
    the decedents’ estates. See In re Labatt Food Serv., 279 S.W.3d at 646; Stevenson,
    608 S.W.3d at 131. Therefore, Ladymon’s position in Roe as a non-signatory to an
    agreement is not comparable to appellees’ positions in this case. As we conclude
    above, appellees are subject to the decedents’ agreements, including the arbitration
    provision and its incorporation of the AAA’s Commercial Arbitration Rules, which
    delegate arbitrability questions to the arbitrator.
    VI.    CONCLUSION
    We reverse the trial court’s orders granting a stay of arbitration and denying
    appellants’ plea in abatement. We remand the causes with instructions to order the
    parties to arbitration and to stay the underlying causes pending the outcome of the
    arbitrations. We dismiss appellants’ petition for writ of mandamus as moot.
    /Bill Pedersen, III//
    200380f.p05                                  BILL PEDERSEN, III
    200387f.p05                                  JUSTICE
    200388f.p05
    200389f.p05
    200390f.p05
    –18–
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    PRESTONWOOD TRADITION,                        On Appeal from the County Court at
    LP; TRADITION MANAGEMENT,                     Law No. 2, Dallas County, Texas
    LLC; PRESTONWOOD TSL, LP;                     Trial Court Cause No. CC-19-03747-
    PRESTONWOOD TSL GP, LLC,                      B.
    TRADITION SENIOR LIVING,                      Opinion delivered by Justice
    L.P.; TRADITION SL, LLC; AND                  Pedersen, III. Justice Goldstein
    JONATHAN S. PERLMAN,                          participating. Justice Partida-Kipness
    Appellants                                    delivered a Dissenting Opinion.
    No. 05-20-00380-CV          V.
    MARY JO JENNINGS,
    INDIVIDUALLY AND AS THE
    INDEPENDENT EXECUTRIX
    AND REPRESENTATIVE OF THE
    BENEFICIARIES OF THE ESTATE
    OF LEAH ALICE CORKEN; LISA
    CULLEN, INDIVIDUALLY; AND
    MATT CORKEN, INDIVIDUALLY
    Appellees
    In accordance with this Court’s opinion of this date, the orders of the trial
    court are REVERSED and this cause is REMANDED to the trial court for further
    proceedings consistent with this opinion.
    It is ORDERED that appellants PRESTONWOOD TRADITION, LP;
    TRADITION MANAGEMENT, LLC; PRESTONWOOD TSL, LP;
    PRESTONWOOD TSL GP, LLC, TRADITION SENIOR LIVING, L.P.;
    TRADITION SL, LLC; AND JONATHAN S. PERLMAN recover their costs of this
    appeal from appellee Mary Jo Jennings, Individually and as the Independent
    –19–
    Executrix and Representative of the Beneficiaries of the Estate of Leah Alice
    Corken; appellee Lisa Cullen, Individually; and appellee Matt Corken, Individually.
    Judgment entered this 22nd day of October, 2021.
    –20–
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    PRESTONWOOD TRADITION,                        On Appeal from the County Court at
    LP; TRADITION MANAGEMENT,                     Law No. 2, Dallas County, Texas
    LLC; PRESTONWOOD TSL, LP;                     Trial Court Cause No. CC-19-03737-
    PRESTONWOOD TSL GP, LLC,                      B.
    TRADITION SENIOR LIVING,                      Opinion delivered by Justice
    L.P.; TRADITION SL, LLC; AND                  Pedersen, III. Justice Goldstein
    JONATHAN S. PERLMAN,                          participating. Justice Partida-Kipness
    Appellants                                    delivered a Dissenting Opinion.
    No. 05-20-00387-CV          V.
    DIANNE TANNERY,
    INDIVIDUALLY AND AS THE
    INDEPENDENT EXECUTRIX
    AND REPRESENTATIVE OF THE
    BENEFICIARIES OF THE ESTATE
    OF JUANITA PURDY; AND
    THOMAS DUCKER,
    INDIVIDUALLY Appellees
    In accordance with this Court’s opinion of this date, the orders of the trial
    court are REVERSED and this cause is REMANDED to the trial court for further
    proceedings consistent with this opinion.
    It is ORDERED that appellants PRESTONWOOD TRADITION, LP;
    TRADITION MANAGEMENT, LLC; PRESTONWOOD TSL, LP;
    PRESTONWOOD TSL GP, LLC, TRADITION SENIOR LIVING, L.P.;
    TRADITION SL, LLC; AND JONATHAN S. PERLMAN recover their costs of this
    appeal from appellee Dianne Tannery, Individually and as the Independent
    –21–
    Executrix and Representative of the Beneficiaries of the Estate of Juanita Purdy; and
    appellee Thomas Ducker, Individually.
    Judgment entered this 22nd day of October, 2021.
    –22–
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    PRESTONWOOD TRADITION,                        On Appeal from the County Court at
    LP; TRADITION MANAGEMENT,                     Law No. 2, Dallas County, Texas
    LLC; PRESTONWOOD TSL, LP;                     Trial Court Cause No. CC-19-03754-
    PRESTONWOOD TSL GP, LLC,                      B.
    TRADITION SENIOR LIVING,                      Opinion delivered by Justice
    L.P.; TRADITION SL, LLC; AND                  Pedersen, III. Justice Goldstein
    JONATHAN S. PERLMAN,                          participating. Justice Partida-Kipness
    Appellants                                    delivered a Dissenting Opinion.
    No. 05-20-00388-CV          V.
    SHERRIL KERR, INDIVIDUALLY
    AND AS THE INDEPENDENT
    EXECUTRIX AND
    REPRESENTATIVE OF THE
    BENEFICIARIES OF THE ESTATE
    OF GLENNA DAY; AND
    GREGORY B. DAY,
    INDIVIDUALLY, Appellees
    In accordance with this Court’s opinion of this date, the orders of the trial
    court are REVERSED and this cause is REMANDED to the trial court for further
    proceedings consistent with this opinion.
    It is ORDERED that appellants PRESTONWOOD TRADITION, LP;
    TRADITION MANAGEMENT, LLC; PRESTONWOOD TSL, LP;
    PRESTONWOOD TSL GP, LLC, TRADITION SENIOR LIVING, L.P.;
    TRADITION SL, LLC; AND JONATHAN S. PERLMAN recover their costs of this
    appeal from appellee Sherril Kerr, Individually and as the Independent Executrix
    –23–
    and Representative of the Beneficiaries of the Estate of Glenna Day; and appellee
    Gregory B. Day, Individually.
    Judgment entered this 22nd day of October, 2021.
    –24–
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    PRESTONWOOD TRADITION,                        On Appeal from the County Court at
    LP; TRADITION MANAGEMENT,                     Law No. 2, Dallas County, Texas
    LLC; PRESTONWOOD TSL, LP;                     Trial Court Cause No. CC-19-03757-
    PRESTONWOOD TSL GP, LLC,                      B.
    TRADITION SENIOR LIVING,                      Opinion delivered by Justice
    L.P.; TRADITION SL, LLC; AND                  Pedersen, III. Justice Goldstein
    JONATHAN S. PERLMAN,                          participating. Justice Partida-Kipness
    Appellants                                    delivered a Dissenting Opinion.
    No. 05-20-00389-CV          V.
    MARSHA SPRING REPP AND
    STEVEN SPRING,
    INDIVIDUALLY AND AS THE
    CO-EXECUTORS AND
    REPRESENTATIVES OF THE
    BENEFICIARIES OF THE ESTATE
    OF SOLOMON H. SPRING,
    Appellees
    In accordance with this Court’s opinion of this date, the orders of the trial
    court are REVERSED and this cause is REMANDED to the trial court for further
    proceedings consistent with this opinion.
    It is ORDERED that appellants PRESTONWOOD TRADITION, LP;
    TRADITION MANAGEMENT, LLC; PRESTONWOOD TSL, LP;
    PRESTONWOOD TSL GP, LLC, TRADITION SENIOR LIVING, L.P.;
    TRADITION SL, LLC; AND JONATHAN S. PERLMAN recover their costs of this
    appeal from appellees Marsha Spring Repp and Steven Spring, Individually and as
    –25–
    the Co-Executors and Representatives of the Beneficiaries of the Estate of Solomon
    H. Spring.
    Judgment entered this 22nd day of October, 2021.
    –26–
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    PRESTONWOOD TRADITION,                        On Appeal from the County Court at
    LP; TRADITION MANAGEMENT,                     Law No. 2, Dallas County, Texas
    LLC; PRESTONWOOD TSL, LP;                     Trial Court Cause No. CC-19-03745-
    PRESTONWOOD TSL GP, LLC,                      B.
    TRADITION SENIOR LIVING,                      Opinion delivered by Justice
    L.P.; TRADITION SL, LLC; AND                  Pedersen, III. Justice Goldstein
    JONATHAN S. PERLMAN,                          participating. Justice Partida-Kipness
    Appellants                                    delivered a Dissenting Opinion.
    No. 05-20-00390-CV          V.
    MICHAEL SOLOMON,
    MATTHEW ABRAMOWITZ, AND
    PAUL ABRAMOWITZ,
    INDIVIDUALLY AND AS THE
    CO-EXECUTORS AND
    REPRESENTATIVES OF THE
    BENEFICIARIES OF THE ESTATE
    OF JOYCE ABRAMOWITZ; AND
    MARC ABRAMOWITZ,
    INDIVIDUALLY, Appellees
    In accordance with this Court’s opinion of this date, the orders of the trial
    court are REVERSED and this cause is REMANDED to the trial court for further
    proceedings consistent with this opinion.
    It is ORDERED that appellants PRESTONWOOD TRADITION, LP;
    TRADITION MANAGEMENT, LLC; PRESTONWOOD TSL, LP;
    PRESTONWOOD TSL GP, LLC, TRADITION SENIOR LIVING, L.P.;
    TRADITION SL, LLC; AND JONATHAN S. PERLMAN recover their costs of this
    –27–
    appeal from appellees Michael Solomon, Matthew Abramowitz, and Paul
    Abramowitz, Individually and as the Co-Executors and Representatives of the
    Beneficiaries of the Estate of Joyce Abramowitz, and Marc Abramowitz,
    Individually.
    Judgment entered this 22nd day of October, 2021.
    –28–