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CAUSE NO. 297859
NAYEF SHABAN AND EMAN IN THE DISTRICT COURT
FRAIHAT
Plaintiff
FORT BEND COUNTY, TEXAS
SARATOGA HOMES OF TEXAS
HOUSTON, LLC
Defendant 400TH JUDICIAL DISTRICT
DEFENDANT SARATOGA HOMES OF TEXAS HOUSTON, LLC’S MOTION TO
COMPEL ARBITRATION AND TO DISMISS PLAINTIFF’S CLAIMS
TO THE HONORABLE JUDGE OF THIS COURT:
Defendant Saratoga Homes of Texas Houston, LLC Defendant”) s its Motion to
Compel Arbitration and will respectfully show the Court as follows
NTRODUCTION AND ACTUAL ACKGROUND
On or around May 28, 2019, Plaintiffs Nayef Shaban and Eman Fraihat
(“Plaintiffs”) and Defendant Saratoga Homes of Texas Houston, LLC (“Saratoga”) entered into a
purchase agreement (the “Contract”) relating to the Plaintiffs’ purchase of a home located at
2414 Volterra Lake Lane, Missouri City, Texas 77459 (the “Property”) See Exhibit 1. This
contract was never rescinded or amended.
Plaintiffs allege the Property contains unidentified “construction defects” which
have allegedly caused a “mold infestation.” As a result, Plaintiffs filed this lawsuit alleging
breach of contract, breach of implied warranties, deceptive trade practices, and negligent
construction claims against Saratoga.
See Plaintiff’s Original Petition, a copy of which is on file with this Honorable Court.
3. The contract to which Plaintiffs refer in their original petition contains an
arbitration clause (“Arbitration Provision”) that states, in relevant part, as follows:
All claims, demands, disputes, controversies and differences that may arise
between the parties to this Agreement…including, without limitation, the
following: …(iii) arising out of or relating to any of the terms or conditions of
this Agreement, (iv) arising from the construction of the home sold pursuant
to this Agreement, (v) arising from any warranty claims, any repairs claimed,
any alleged construction defects or other matter arising from the physical
condition of the home, including arising under any limited warranty given
with respect to the home, (vi) arising under or pursuant to the Residential
Construction Liability Act…the Deceptive Trade Practices Act..shall be
submitted to binding arbitration and such arbitration shall be governed by the
provisions of the Federal Arbitration Act… (Exhibit 1 at Section 16 on page
2)(emphasis added).
Thus, the contract requires the parties to enter into binding arbitration to resolve disputes relating
to the very issues raised in their petition filed with this court. Both the causes of action alleged
by the plaintiffs and the Property which serves as the nexus for this matter are both covered and
contemplated within this arbitration provision.
4. Moreover, the contract at issue in this case states, “Seller and Buyer acknowledge
that either has the right to seek legal advice regarding this provision and to negotiate the terms of
this agreement for binding arbitration.” Id. At the bottom of this provision contained in the
contract, both parties evidence their acceptance with their initials. Id.
5. Further, should such be necessary, the Arbitration Provision contained within the
subject Contract does not restrict or modify a party’s substantive rights under any statute or other
law and places no limitation on available remedies. It simply requires that covered disputes be
resolved by arbitration. The agreement states as follows: “All matters in controversy are agreed
to be submitted to an arbitrator, whose decision regarding all matters in controversy shall be
final.” Id. Thus, the Plaintiffs here may obtain the same relief in arbitration as in a judicial
proceeding.
2
6. Plaintiffs have contractually obligated themselves to submit their claims to
binding arbitration. Therefore, Saratoga respectfully requests that this Honorable Court dismiss
Plaintiff’s claims against Defendant with prejudice and compel Plaintiffs to submit their claims
against Defendant to the AAA for arbitration.
II. ARGUMENTS & AUTHORITIES
7. The clear language of the Contract states that the Federal Arbitration Act (“FAA”)
shall apply. Pursuant to the FAA, a party seeking to compel arbitration must (1) establish the
existence of a valid and enforceable arbitration agreement and (2) show the claims asserted fall
within the scope of that agreement.
8. Under the FAA, a federal court applies ordinary state contract law principles in
order to decide whether a valid arbitration agreement exists.2 Texas contract law applies to
determine the validity of the Contract in this case. Both federal and state courts recognize and
agree that there is a strong presumption and policy favoring arbitration agreements, and that
courts should “resolve all doubts concerning the arbitrability of claims in favor of arbitration.”3
Here, there is a valid, enforceable arbitration agreement that expressly covers Plaintiffs’ claims
against Defendant.
The Federal Arbitration Act Applies to Plaintiff’s Claims
9. The Federal Arbitration Act specifically applies to and governs the Contract.4 The
FAA provides that a written agreement within a contract involving commerce to arbitrate
controversies arising out of such contract “shall be valid, irrevocable, and enforceable, save upon
2
See Alim v. KBR, Inc., 570 Fed. Appx. 417, 420 (5th Cir. 2014) (per curiam) (“In assessing the
enforceability of an arbitration agreement, we apply the contract law of the state (Texas, in this case) that governs
the agreement.”); In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006) (citing First Options of Chicago,
Inc. v. Kaplan, 514 U.S. 938, 944 (1995)).
3
Fintech Fund, FLP, 327 F. Supp. 3d at 1024; Poole-Ward v. Affiliates for Women's Health, P.A., 283 F.
Supp. 3d 595, 598 (S.D. Tex. 2017) (“The Act reflects ‘a liberal policy favoring arbitration agreements.’”)
4
9 U.S.C. § 1, et seq.
3
such grounds as exist at law or in equity for the revocation of any contract” (emphasis added). 5
“Commerce” means “contracts relating to interstate commerce.”6 Significantly, the FAA does
not require a substantial effect on interstate commerce; rather, it merely requires commerce to be
involved or affected.7
10. Here, Defendant was engaged in commerce, as it was in the business of selling the
Property to the Plaintiffs. Thus, pursuant to the FAA, Plaintiffs’ claims against Defendant are
subject to the valid and enforceable agreement to submit claims to arbitration in accordance with
the Contract.
A Valid and Enforceable Arbitration Agreement Exists.
11. A party seeking to compel arbitration must first establish the existence of a valid
enforceable arbitration agreement.8 In determining whether a valid arbitration agreement exists,
Texas courts apply state-law principles governing the formation of contracts.9 Here, on May 28,
2019, both Plaintiffs and Defendant executed the purchase agreement which is the subject of this
litigation. In fact, Plaintiffs expressly consented to be bound by the terms of the arbitration
agreement as evidenced with their initials at the end of the Arbitration Provision of the contract,
without reservation. (Exhibit 1 at page 2). Moreover, Plaintiffs’ initials and signatures on the
aforementioned documents are strong evidence of their actual acknowledgment and agreement
that they are required to adhere to the terms of the contract, including the Arbitration Provision.10
Further, all terms of the agreement are written in plain English, and neither fraud nor coercion
caused Plaintiffs to execute same.
5
See 9 U.S.C. § 2.
6
Unit Drilling, LLC v. Morales, 2010 Tex. App. LEXIS 6005, 8 (Tex. App-Corpus Christi 2010).
7
See L & L Kempwood Assocs., L.P. v. Omega Builders, Inc. (In re L & L Kempwood Assocs., L.P.), 9
S.W.3d 125, 127 (Tex. 1999).
8
Kellog, 166 S.W.3d at 737.
9
In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 676 (Tex. 2006).
10
See e.g., In re Bunzl USA, 155 S.W.3d 202, 209 (Tex. App.—El Paso 2004, orig. proceeding).
4
12. Defendant sold the Property at issue to Plaintiffs in accordance with the contract
between the parties. The Arbitration Provision contained within the agreement is reciprocal in
nature, as both parties are required to submit claims pursuant to the Arbitration Provision. Thus,
Plaintiffs’ agreement to be bound by the Arbitration Provision is supported by adequate
consideration. The Arbitration Provision is valid and enforceable because it satisfies state-law
contract formation principles.
13. Plaintiffs accepted the terms of the Arbitration Provision, as a matter of law.
Under well-settled state law contract principles, “parties are presumed to have read and
understood the contracts they signed, and to have fully comprehended their legal effect.” 11 Here,
Plaintiffs expressly and explicitly agreed to arbitrate certain, covered claims that may arise.
Based on the above, Defendant requests that this Honorable Court find the Arbitration Provision
contained within the contract to constitute a valid and enforceable agreement.
The Dispute Falls Within the Scope of the Agreement
14. Plaintiffs’ claims fall within the scope of the Arbitration Provision. Whether a
claim falls within the scope of an arbitration agreement depends on the factual allegations of the
complaint rather than the legal causes of action asserted.12 Based on the factual allegations
contained in Plaintiffs’ Petition, their claims fall squarely within the scope of the provision.
15. First, all of Plaintiffs’ claims against Defendant arise out of the sale of the
Property at issue in this litigation. It is undisputed that Plaintiffs purchased the Property from
Defendant pursuant to the purchase agreement, and Plaintiffs’ alleged injury relates to the
Property which was the subject of the purchase agreement.
11
Raymond James & Assoc, v. Bowman, 196 S.W.3d 311, 318-19 (Tex.App.- Houston [1st Dist] 2006, no
pet.)
12
Prudential Secs., Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex. 1995); Ikon Office Solutions, Inc. v. Eifert,
2 S.W.3d 688, 697 (Tex. App.—Houston [14th Dist.] 1999, orig. proceeding); Prudential-Bache Secs., Inc. v.
Garza, 848 S.W.2d 803, 807 (Tex. App.—Corpus Christi 1993).
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16. Second, by their execution of the purchase agreement in addition to the
Arbitration Provision, Plaintiffs agreed that “[a]ll claims, demands, disputes, controversies and
differences that may arise between the parties to this Agreement... shall be submitted to binding
arbitration and such arbitration shall be governed by the provisions of the Federal Arbitration
Act…” (Exhibit 1 at Section 16 on page 2). Thus, Plaintiffs’ claims against Defendant of alleged
breach of implied warranties, violations of the Deceptive Trade Practices Act, and negligent
construction clearly fall within the scope of “all” claims between the parties as defined in the
Purchase Agreement. Accordingly, Defendant’s Motion to Compel Arbitration should be
granted and this case should be dismissed or abated and compelled to final and binding
arbitration.
The Court Lacks Subject Matter Jurisdiction and Plaintiff’s Claims Against Defendant
Should be Dismissed.
17. Pursuant to Texas Rule of Civil Procedure 85, Defendant asserts that this
Honorable Court lacks subject matter jurisdiction over all claims asserted by Plaintiffs against
Defendant because, as set forth in detail above, Plaintiffs may only bring such claims pursuant to
the Arbitration Provision. Without subject matter jurisdiction, a court does not have authority to
render judgment and must dismiss the claims without resolving the parties’ substantive
arguments.13 Therefore, Defendant respectfully requests that this Honorable Court dismiss all
claims asserted against it by Plaintiffs with prejudice and require Plaintiff to submit all claims
against Defendant pursuant to the Arbitration Provision.
18. Further, dismissal with prejudice, rather than abatement, is appropriate. The
United States Court of Appeals for the Fifth Circuit has held that, where all issues are to be
13
City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (emphasis added).
6
resolved by arbitration, dismissal, rather than a stay, is appropriate.14 Here, all of Plaintiffs’
claims are subject to arbitration. Thus, Defendant respectfully requests that this Honorable Court
dismiss all of Plaintiffs’ claims asserted against it with prejudice and require Plaintiff to submit
all claims against same to arbitration.
III. CONCLUSION
19. The parties voluntarily entered into a Purchase Agreement related to the Property
at issue in this litigation. Contained within that Purchase Agreement is a valid and enforceable
arbitration agreement, to which Plaintiffs also unequivocally agreed. Plaintiffs’ signatures and
initials evidenced Plaintiffs’ understanding of its terms and requirements that they submit all
claims to arbitration. The Arbitration Provision is a valid and enforceable arbitration agreement.
The Arbitration Provision explicitly applies to those claims alleged by Plaintiffs. Therefore,
Plaintiffs’ claims, as asserted in this lawsuit, are subject to the terms of the Arbitration Provision.
Consequently, Defendant’s Motion to Compel Arbitration should be granted and this case should
be dismissed and compelled to final and binding arbitration.
PRAYER
Defendant, Saratoga Homes Of Texas Houston, LLC, respectfully requests that this
Honorable Court compel Plaintiffs to submit their claims against it to the arbitration and dismiss
or abate this action. Defendant, Saratoga Homes Of Texas Houston, LLC, further prays that
Court award it such further relief to which it may show itself justly entitled.
Respectfully submitted,
GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH
/s/ Stormy Mayfield
Les Pickett
14
See Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992) (“The weight of authority
clearly supports dismissal of the case when all of the issues raised in district court must be submitted to
arbitration.”).
7
State Bar No. 15980520
lpickett@gallowaylawfirm.com
Stormy Mayfield
State Bar No. 24067656
smayfield@gallowaylawfirm.com
1301 McKinney Street, Suite 1400
Houston, Texas 77010
(713) 599-0700 – telephone
(713) 599-0777 – facsimile
ATTORNEYS FOR DEFENDANT
SARATOGA HOMES OF TEXAS
HOUSTON, LLC
CERTIFICATE OF CONFERENCE
I hereby certify that on April 10, 2023 undersigned attempted to confer with plaintiffs’
counsel regarding the foregoing motion but was unable to do so. As such, Plaintiffs are
OPPOSED to the motion.
/s/ Stormy Mayfield
Les Pickett
Stormy Mayfield
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served
by and through the Court approved electronic filing manager via email to participating parties to
all known counsel of record on this 12th day of April, 2023, as follows:
/s/ Stormy Mayfield____________________
Les Pickett
Stormy Mayfield
8
Preview
CAUSE NO. 297859 NAYEF SHABAN AND EMAN IN THE DISTRICT COURT FRAIHAT Plaintiff FORT BEND COUNTY, TEXAS SARATOGA HOMES OF TEXAS HOUSTON, LLC Defendant 400TH JUDICIAL DISTRICT DEFENDANT SARATOGA HOMES OF TEXAS HOUSTON, LLC’S MOTION TO COMPEL ARBITRATION AND TO DISMISS PLAINTIFF’S CLAIMS TO THE HONORABLE JUDGE OF THIS COURT: Defendant Saratoga Homes of Texas Houston, LLC Defendant”) s its Motion to Compel Arbitration and will respectfully show the Court as follows NTRODUCTION AND ACTUAL ACKGROUND On or around May 28, 2019, Plaintiffs Nayef Shaban and Eman Fraihat (“Plaintiffs”) and Defendant Saratoga Homes of Texas Houston, LLC (“Saratoga”) entered into a purchase agreement (the “Contract”) relating to the Plaintiffs’ purchase of a home located at 2414 Volterra Lake Lane, Missouri City, Texas 77459 (the “Property”) See Exhibit 1. This contract was never rescinded or amended. Plaintiffs allege the Property contains unidentified “construction defects” which have allegedly caused a “mold infestation.” As a result, Plaintiffs filed this lawsuit alleging breach of contract, breach of implied warranties, deceptive trade practices, and negligent construction claims against Saratoga. See Plaintiff’s Original Petition, a copy of which is on file with this Honorable Court. 3. The contract to which Plaintiffs refer in their original petition contains an arbitration clause (“Arbitration Provision”) that states, in relevant part, as follows: All claims, demands, disputes, controversies and differences that may arise between the parties to this Agreement…including, without limitation, the following: …(iii) arising out of or relating to any of the terms or conditions of this Agreement, (iv) arising from the construction of the home sold pursuant to this Agreement, (v) arising from any warranty claims, any repairs claimed, any alleged construction defects or other matter arising from the physical condition of the home, including arising under any limited warranty given with respect to the home, (vi) arising under or pursuant to the Residential Construction Liability Act…the Deceptive Trade Practices Act..shall be submitted to binding arbitration and such arbitration shall be governed by the provisions of the Federal Arbitration Act… (Exhibit 1 at Section 16 on page 2)(emphasis added). Thus, the contract requires the parties to enter into binding arbitration to resolve disputes relating to the very issues raised in their petition filed with this court. Both the causes of action alleged by the plaintiffs and the Property which serves as the nexus for this matter are both covered and contemplated within this arbitration provision. 4. Moreover, the contract at issue in this case states, “Seller and Buyer acknowledge that either has the right to seek legal advice regarding this provision and to negotiate the terms of this agreement for binding arbitration.” Id. At the bottom of this provision contained in the contract, both parties evidence their acceptance with their initials. Id. 5. Further, should such be necessary, the Arbitration Provision contained within the subject Contract does not restrict or modify a party’s substantive rights under any statute or other law and places no limitation on available remedies. It simply requires that covered disputes be resolved by arbitration. The agreement states as follows: “All matters in controversy are agreed to be submitted to an arbitrator, whose decision regarding all matters in controversy shall be final.” Id. Thus, the Plaintiffs here may obtain the same relief in arbitration as in a judicial proceeding. 2 6. Plaintiffs have contractually obligated themselves to submit their claims to binding arbitration. Therefore, Saratoga respectfully requests that this Honorable Court dismiss Plaintiff’s claims against Defendant with prejudice and compel Plaintiffs to submit their claims against Defendant to the AAA for arbitration. II. ARGUMENTS & AUTHORITIES 7. The clear language of the Contract states that the Federal Arbitration Act (“FAA”) shall apply. Pursuant to the FAA, a party seeking to compel arbitration must (1) establish the existence of a valid and enforceable arbitration agreement and (2) show the claims asserted fall within the scope of that agreement. 8. Under the FAA, a federal court applies ordinary state contract law principles in order to decide whether a valid arbitration agreement exists.2 Texas contract law applies to determine the validity of the Contract in this case. Both federal and state courts recognize and agree that there is a strong presumption and policy favoring arbitration agreements, and that courts should “resolve all doubts concerning the arbitrability of claims in favor of arbitration.”3 Here, there is a valid, enforceable arbitration agreement that expressly covers Plaintiffs’ claims against Defendant. The Federal Arbitration Act Applies to Plaintiff’s Claims 9. The Federal Arbitration Act specifically applies to and governs the Contract.4 The FAA provides that a written agreement within a contract involving commerce to arbitrate controversies arising out of such contract “shall be valid, irrevocable, and enforceable, save upon 2 See Alim v. KBR, Inc., 570 Fed. Appx. 417, 420 (5th Cir. 2014) (per curiam) (“In assessing the enforceability of an arbitration agreement, we apply the contract law of the state (Texas, in this case) that governs the agreement.”); In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006) (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). 3 Fintech Fund, FLP, 327 F. Supp. 3d at 1024; Poole-Ward v. Affiliates for Women's Health, P.A., 283 F. Supp. 3d 595, 598 (S.D. Tex. 2017) (“The Act reflects ‘a liberal policy favoring arbitration agreements.’”) 4 9 U.S.C. § 1, et seq. 3 such grounds as exist at law or in equity for the revocation of any contract” (emphasis added). 5 “Commerce” means “contracts relating to interstate commerce.”6 Significantly, the FAA does not require a substantial effect on interstate commerce; rather, it merely requires commerce to be involved or affected.7 10. Here, Defendant was engaged in commerce, as it was in the business of selling the Property to the Plaintiffs. Thus, pursuant to the FAA, Plaintiffs’ claims against Defendant are subject to the valid and enforceable agreement to submit claims to arbitration in accordance with the Contract. A Valid and Enforceable Arbitration Agreement Exists. 11. A party seeking to compel arbitration must first establish the existence of a valid enforceable arbitration agreement.8 In determining whether a valid arbitration agreement exists, Texas courts apply state-law principles governing the formation of contracts.9 Here, on May 28, 2019, both Plaintiffs and Defendant executed the purchase agreement which is the subject of this litigation. In fact, Plaintiffs expressly consented to be bound by the terms of the arbitration agreement as evidenced with their initials at the end of the Arbitration Provision of the contract, without reservation. (Exhibit 1 at page 2). Moreover, Plaintiffs’ initials and signatures on the aforementioned documents are strong evidence of their actual acknowledgment and agreement that they are required to adhere to the terms of the contract, including the Arbitration Provision.10 Further, all terms of the agreement are written in plain English, and neither fraud nor coercion caused Plaintiffs to execute same. 5 See 9 U.S.C. § 2. 6 Unit Drilling, LLC v. Morales, 2010 Tex. App. LEXIS 6005, 8 (Tex. App-Corpus Christi 2010). 7 See L & L Kempwood Assocs., L.P. v. Omega Builders, Inc. (In re L & L Kempwood Assocs., L.P.), 9 S.W.3d 125, 127 (Tex. 1999). 8 Kellog, 166 S.W.3d at 737. 9 In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 676 (Tex. 2006). 10 See e.g., In re Bunzl USA, 155 S.W.3d 202, 209 (Tex. App.—El Paso 2004, orig. proceeding). 4 12. Defendant sold the Property at issue to Plaintiffs in accordance with the contract between the parties. The Arbitration Provision contained within the agreement is reciprocal in nature, as both parties are required to submit claims pursuant to the Arbitration Provision. Thus, Plaintiffs’ agreement to be bound by the Arbitration Provision is supported by adequate consideration. The Arbitration Provision is valid and enforceable because it satisfies state-law contract formation principles. 13. Plaintiffs accepted the terms of the Arbitration Provision, as a matter of law. Under well-settled state law contract principles, “parties are presumed to have read and understood the contracts they signed, and to have fully comprehended their legal effect.” 11 Here, Plaintiffs expressly and explicitly agreed to arbitrate certain, covered claims that may arise. Based on the above, Defendant requests that this Honorable Court find the Arbitration Provision contained within the contract to constitute a valid and enforceable agreement. The Dispute Falls Within the Scope of the Agreement 14. Plaintiffs’ claims fall within the scope of the Arbitration Provision. Whether a claim falls within the scope of an arbitration agreement depends on the factual allegations of the complaint rather than the legal causes of action asserted.12 Based on the factual allegations contained in Plaintiffs’ Petition, their claims fall squarely within the scope of the provision. 15. First, all of Plaintiffs’ claims against Defendant arise out of the sale of the Property at issue in this litigation. It is undisputed that Plaintiffs purchased the Property from Defendant pursuant to the purchase agreement, and Plaintiffs’ alleged injury relates to the Property which was the subject of the purchase agreement. 11 Raymond James & Assoc, v. Bowman, 196 S.W.3d 311, 318-19 (Tex.App.- Houston [1st Dist] 2006, no pet.) 12 Prudential Secs., Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex. 1995); Ikon Office Solutions, Inc. v. Eifert, 2 S.W.3d 688, 697 (Tex. App.—Houston [14th Dist.] 1999, orig. proceeding); Prudential-Bache Secs., Inc. v. Garza, 848 S.W.2d 803, 807 (Tex. App.—Corpus Christi 1993). 5 16. Second, by their execution of the purchase agreement in addition to the Arbitration Provision, Plaintiffs agreed that “[a]ll claims, demands, disputes, controversies and differences that may arise between the parties to this Agreement... shall be submitted to binding arbitration and such arbitration shall be governed by the provisions of the Federal Arbitration Act…” (Exhibit 1 at Section 16 on page 2). Thus, Plaintiffs’ claims against Defendant of alleged breach of implied warranties, violations of the Deceptive Trade Practices Act, and negligent construction clearly fall within the scope of “all” claims between the parties as defined in the Purchase Agreement. Accordingly, Defendant’s Motion to Compel Arbitration should be granted and this case should be dismissed or abated and compelled to final and binding arbitration. The Court Lacks Subject Matter Jurisdiction and Plaintiff’s Claims Against Defendant Should be Dismissed. 17. Pursuant to Texas Rule of Civil Procedure 85, Defendant asserts that this Honorable Court lacks subject matter jurisdiction over all claims asserted by Plaintiffs against Defendant because, as set forth in detail above, Plaintiffs may only bring such claims pursuant to the Arbitration Provision. Without subject matter jurisdiction, a court does not have authority to render judgment and must dismiss the claims without resolving the parties’ substantive arguments.13 Therefore, Defendant respectfully requests that this Honorable Court dismiss all claims asserted against it by Plaintiffs with prejudice and require Plaintiff to submit all claims against Defendant pursuant to the Arbitration Provision. 18. Further, dismissal with prejudice, rather than abatement, is appropriate. The United States Court of Appeals for the Fifth Circuit has held that, where all issues are to be 13 City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (emphasis added). 6 resolved by arbitration, dismissal, rather than a stay, is appropriate.14 Here, all of Plaintiffs’ claims are subject to arbitration. Thus, Defendant respectfully requests that this Honorable Court dismiss all of Plaintiffs’ claims asserted against it with prejudice and require Plaintiff to submit all claims against same to arbitration. III. CONCLUSION 19. The parties voluntarily entered into a Purchase Agreement related to the Property at issue in this litigation. Contained within that Purchase Agreement is a valid and enforceable arbitration agreement, to which Plaintiffs also unequivocally agreed. Plaintiffs’ signatures and initials evidenced Plaintiffs’ understanding of its terms and requirements that they submit all claims to arbitration. The Arbitration Provision is a valid and enforceable arbitration agreement. The Arbitration Provision explicitly applies to those claims alleged by Plaintiffs. Therefore, Plaintiffs’ claims, as asserted in this lawsuit, are subject to the terms of the Arbitration Provision. Consequently, Defendant’s Motion to Compel Arbitration should be granted and this case should be dismissed and compelled to final and binding arbitration. PRAYER Defendant, Saratoga Homes Of Texas Houston, LLC, respectfully requests that this Honorable Court compel Plaintiffs to submit their claims against it to the arbitration and dismiss or abate this action. Defendant, Saratoga Homes Of Texas Houston, LLC, further prays that Court award it such further relief to which it may show itself justly entitled. Respectfully submitted, GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH /s/ Stormy Mayfield Les Pickett 14 See Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992) (“The weight of authority clearly supports dismissal of the case when all of the issues raised in district court must be submitted to arbitration.”). 7 State Bar No. 15980520 lpickett@gallowaylawfirm.com Stormy Mayfield State Bar No. 24067656 smayfield@gallowaylawfirm.com 1301 McKinney Street, Suite 1400 Houston, Texas 77010 (713) 599-0700 – telephone (713) 599-0777 – facsimile ATTORNEYS FOR DEFENDANT SARATOGA HOMES OF TEXAS HOUSTON, LLC CERTIFICATE OF CONFERENCE I hereby certify that on April 10, 2023 undersigned attempted to confer with plaintiffs’ counsel regarding the foregoing motion but was unable to do so. As such, Plaintiffs are OPPOSED to the motion. /s/ Stormy Mayfield Les Pickett Stormy Mayfield CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been served by and through the Court approved electronic filing manager via email to participating parties to all known counsel of record on this 12th day of April, 2023, as follows: /s/ Stormy Mayfield____________________ Les Pickett Stormy Mayfield 8