author: Justice BRIDGES.

text:
    MERRILL LYNCH & CO., INC. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Appellants, v. METROPCS WIRELESS and Metropcs Communications, Inc., Appellees In re Merrill Lynch & Co., Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated.
    No. 05-09-00113-CV.
    Court of Appeals of Texas, Dallas.
    July 29, 2010.
    Charles A. Gall, Joel Randall Sharp, Eric R. Hail, Hunton & Williams LLP, Dallas, for Appellants.
    Lewis T. LeClair, Robert E. Goodfriend, McKool & Smith, Deborah G. Hankinson, Rick Thompson, Hankinson Levinger LLP, Dallas, for Appellees.
    Before Justices MORRIS, BRIDGES, and MURPHY.
   OPINION

Opinion By

Justice BRIDGES.

Appellants’ motion to dismiss this appeal and original proceeding is GRANTED, and this appeal and original proceeding are DISMISSED. Tex.R.App. P. 42.1.


source: Caselaw Access Project

author: Justice MOSELEY.

license: Public Domain

text:
    Kimberlea A. ROE, Appellant, v. Blane LADYMON and Metro Townhomes & Homes, L.L.P., Appellees.
    No. 05-08-00417-CV.
    Court of Appeals of Texas, Dallas.
    July 30, 2010.

      John J. Marek, Addison, TX, for Appellant.
    Greg C. Noschese, David Jefrie Mizgala, Munsch Hardt Kopf & Harr, P.C., Dallas, TX, for Appellees.
    Before Chief Justice WRIGHT and Justices MORRIS and MOSELEY.
   OPINION

Opinion By

Justice MOSELEY.

Kimberlea A. Roe obtained an arbitration award against Blane Ladymon and Metro Townhomes & Homes, L.L.P. (Metro LLP), a Texas registered limited liability partnership. The trial court confirmed the award against Metro LLP, but vacated the award against Ladymon. Roe and Metro LLP appeal.

This case requires us to determine who — the arbitrator or the court — has the primary responsibility to decide whether a party to the dispute is bound by an arbitration provision in a contract between other parties. The answer to that question determines how we review the decision on whether the party is bound by the arbitration provision. We also consider whether the trial court erred by confirming the award against Metro LLP.

We conclude that Ladymon individually is not a party to the contract containing the arbitration clause, and he did not “clearly and unmistakably” agree to allow the arbitrator to decide issues of arbitra-bility. Therefore, the primary responsibility to decide the issue belongs to the court, not the arbitrator. We also conclude that the trial court — reviewing the issue de novo — did not err by finding that Lady-mon was not individually bound by the arbitration provision. Lastly, we conclude the trial court — applying the deferential standard applicable to arbitration awards — did not err by confirming Roe’s award against Metro LLP. Thus, we affirm the trial court’s judgment.

I. Background

In 2003, Roe contracted for Metro LLP to renovate her home. The contract defined Roe as the “Owner” and Metro LLP as the “Contractor.” Ladymon signed the contract in his capacity as a partner of Metro LLP. Metro LLP’s partners included Ladymon, Metro Townhomes and Homes, Inc. (Metro Inc.), and others.

The contract is a form prepared by the Home Builders Association of Greater Dallas. Paragraph 18 of the contract contained a detailed mediation/arbitration provision. That provision broadly defined a “Dispute” as “any controversy or claim or matters in question between the parties,” and provided that the Owner and Contractor agreed to submit any Dispute to mediation, and to submit any unresolved Dispute to the American Arbitration Association (AAA) for binding arbitration pursuant to Federal Arbitration Act (FAA). See 9 U.S.C. §§ 1-16 (2006).

On July 5, 2004, Ladymon, as president of Metro Inc., filed two documents with the Texas Secretary of State. One withdrew Metro LLP’s registration as a registered limited liability partnership and the other was a certificate of limited partnership for Metro Townhomes Limited Partnership (Metro LP). The certificate stated that Metro LLP was converting to a limited partnership, Metro LP. The certificate identified Metro Inc. as Metro LP’s sole general partner and identified Lady-mon as a limited partner. Ladymon testified his accountant advised him to change the form of the business for tax purposes. He testified there was no transfer or formal assignment of Roe’s contract to Metro LP, and the partners continued to do the work on the project. Roe did not have actual knowledge of these filings.

Unsatisfied with the remodeling work, Roe demanded arbitration against both Metro LLP and Ladymon in June 2006. Attached to her arbitration demand was a demand letter addressed to Metro LLP and Ladymon. It alleged several construction defects and failures with the remodeling project and claimed damages under a number of legal theories. Although we do not have a complete record of the arbitration proceedings or a transcript of the arbitration hearing, the record reflects that after an August 2006 preliminary hearing, which Ladymon attended, the arbitrator entered a scheduling order setting deadlines for disclosing witnesses, experts, and exhibits. The arbitrator also set the arbitration hearing for February 2007; the hearing was later rescheduled for May 7, 2007.

Roe served her witness, expert, and exhibit list on April 23, 2007. The next day, Ladymon faxed a letter (on Metro Inc. letterhead) to the arbitrator requesting a sixty-day continuance based on Roe’s allegedly late disclosures, the need to retain experts to respond to Roe’s experts, and the need to hire an attorney for the arbitration hearing. On May 3, 2007, the AAA notified the parties that the arbitrator denied the continuance. Roe filed an additional disclosure of witnesses and attached several pages of new exhibits on May 4, 2007.

Metro LLP and Ladymon retained an attorney to represent them. At the beginning of the May 7, 2007 hearing, they filed five written objections to the arbitration proceeding, again requested a continuance, and requested that Ladymon be dismissed from the proceeding. Objections four and five pertained to whether Ladymon was required to arbitrate Roe’s claims against him:

OBJECTION 4: Respondent Blane La-dymon has been named in his individual capacity but he has not signed an agreement to arbitrate in his individual capacity.
OBJECTION 5: Respondent Blane La-dymon has been named in his individual capacity yet there have been no allegations in the demand for arbitration as to why or how he is liable. Nor is there any allegation that would support an award or finding that the limited liability provided by the entity should be disregarded.

The arbitrator denied the continuance, reserved ruling on Ladymon’s objections until after the parties submitted post-hearing briefs, and proceeded with the hearing.

Ladymon’s post-hearing brief argued that he signed the contract solely as a partner in a registered limited liability partnership (Metro LLP) and thus had no personal liability. See Tex.Rev.Civ. Stat. Ann. art. 6132b-3.07(a)(l) (Vernon Supp. 2009). When Metro LLP withdrew its registration, it converted to a limited partnership (Metro LP) as allowed by law, and Ladymon became a limited partner in Metro LP. Ladymon argued that the contracts and obligations of the old partnership were assigned to the new partnership by operation of law, and thus no formal assignment of Roe’s contract to Metro LP was required. See Tex.Rev.Civ. Stat. Ann. art. 6132b-9.05(h)(l)-(3) (Vernon Supp.2009). And, Ladymon argued, as a limited partner he had no personal liability for the partnership’s obligations. See Tex.Rev. Civ. Stat. Ann. art. 6132a-l, § 3.03(a), (b)(1) (Vernon Supp.2009).

Roe’s post-hearing brief argued that, even though Ladymon did not sign the arbitration agreement in his individual capacity, he was bound to arbitrate the claims against him because he was an officer, agent, or representative of the entity that signed the agreement and was not a stranger to the contract. She also argued that because the contract provided it was binding upon the parties and “their respective ... representatives [and] successors ...,” Ladymon was bound to arbitrate as a representative and successor to Metro LLP. Her successor liability argument was based on Ladymon’s deposition testimony that, to his knowledge, when Metro LLP was “dissolved” there was no formal assignment of the contract with Roe, but he continued to do the work.

On June 5, 2007, the arbitrator signed an award. He overruled Ladymon’s objections and ruled Metro LLP and Ladymon were jointly and severally liable for Roe’s damages. Roe filed this suit to confirm the arbitration award. Metro LLP and Ladymon filed an answer and application to vacate the award.

After hearing evidence and argument, the trial court rendered final judgment. As to Ladymon, the judgment stated:

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 Lady-mon 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.

The trial court then 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.”

As to Metro LLP, the court’s judgment stated that the court was bound by the “exceedingly deferential standard of review that must be given to arbitral awards.” It concluded that Metro LLP did not prove that it received a fundamentally unfair hearing based on the arbitrator’s refusal to postpone the hearing or based on evident partiality of the arbitrator. Thus, the trial court confirmed the award against Metro LLP, but vacated the award against Ladymon individually.

Both Roe and Metro LLP appealed. Roe’s brief identifies a single issue on appeal: whether the trial court erred in vacating the award against Ladymon individually. In its cross-appeal, Metro LLP asserts the trial court erred by confirming (and not vacating) the award against it.

II. Roe’s Appeal — Arbitrability of Claims Against Ladymon

Roe asserts the arbitrator did not exceed his authority by determining that her claims against Ladymon were subject to arbitration, and that the arbitrator’s decision on that issue was correct. She asks this Court to reverse the trial court’s judgment vacating the award against Ladymon and render judgment confirming the arbitration award against Ladymon.

A. Applicable Law

1. Introduction

We begin with the foundational principle that “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” AT & T Techs., Inc. v. Commc’ns. Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)). The United States Supreme Court “has repeatedly emphasized that arbitration ‘is a matter of consent, not coercion,’ that the [FAA] ‘does not require parties to arbitrate when they have not agreed to do so,’ and its purpose is to make arbitration agreements ‘as enforceable as other contracts, but not more so.’ ” In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 192 (Tex.2007) (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989); EEOC v. Waffle House, Inc., 534 U.S. 279, 293, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002) (also quoting Volt, 489 U.S. at 478, 109 S.Ct. 1248); and Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 n. 12, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967)).

A person seeking to compel arbitration must first establish the existence of an arbitration agreement subject to the FAA and show that the claims raised fall within the scope of that agreement. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex.2005); In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 195 S.W.3d 807, 813 (Tex.App.-Dallas 2006, orig. proceeding). Here, the arbitration provision states it is governed by the FAA, and the parties agreed before the trial court and on appeal that the FAA applies. Thus, we conclude the FAA is applicable to this dispute. See In re Kellogg Brown & Root, 80 S.W.3d 611, 617 (Tex.App.-Houston [1st Dist.] 2002, orig. proceeding) (when parties agree to arbitrate under the FAA, they are not required to establish that the transaction at issue involves or affects interstate commerce). While Texas law governs procedural matters in state court cases regarding arbitration, the FAA, if applicable, controls the substantive grounds for vacating, modifying, or correcting an arbitration award. See In re Chestnut Energy Partners, Inc., 300 S.W.3d 386, 399 (Tex.App.Dallas 2009, pet. denied).

Disputes about the scope of an arbitration agreement are resolved in favor of arbitration. In re Kellogg Brown & Root, Inc., 166 S.W.3d at 737. However, this presumption favoring arbitration “arises only after the party seeking to compel arbitration proves that a valid arbitration agreement exists.” Id. (quoting J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003)).

Like other contracts, nonparties are normally not bound by arbitration agreements between others. See 21 R. Lord, Williston on Contracts § 57:19 (4th ed.2003). 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.”).

2. Who Primarily Decides Arbitrability?

The parties to this appeal disagree about a preliminary — but critical— question of law: who has the primary power to decide whether Ladymon is required to arbitrate — the arbitrator or a court? The answer determines the applicable standard of review: if the question is primarily for the arbitrator to decide, courts will review the arbitrator’s determination of that issue with great deference, but if the question is primarily for the court to decide, courts will review the question independently or de novo. See First Options, 514 U.S. at 942, 115 S.Ct. 1920; Perry Homes v. Cull, 258 S.W.3d 580, 587 (Tex.2008) (courts conduct ordinary review of trial court’s initial referral to arbitration and deferential review only of arbitrator’s award); J.M. Davidson, Inc., 128 S.W.3d at 227 (“The trial court’s determination of the arbitration agreement’s validity is a legal question subject to de novo review.”).

On appeal, Roe asserts both that the trial court incorrectly interpreted and applied First Options, and that a proper application of First Options would result in affirming the arbitration award against Ladymon. Roe also argues, apparently alternatively, that First Options is distinguishable from this case. Because of its centrality to the issues and arguments before us, we discuss First Options in some length.

First Options involved an agreement between two companies — First Options and MK Investments, Inc. (MKI), a company wholly owned by Manuel Kaplan and his wife. Based on an arbitration clause in the contract, First Options demanded arbitration against MKI and Kaplan. MKI submitted to arbitration but the Kaplans filed an objection with the arbitration panel, denying their dispute with First Options was arbitrable. The arbitrators decided they had the power to rule on the dispute’s merits and ruled in favor of First Options. The trial court confirmed the award but the court of appeals reversed, stating that courts should independently decide whether an arbitration panel has jurisdiction over a dispute. First Options, 514 U.S. at 940-41, 115 S.Ct. 1920.

The Supreme Court characterized the issue as a narrow one:

To understand just how narrow, consider three types of disagreement present in this case. First, the Kaplans and First Options disagree about whether the Kaplans are personally liable for MKI’s debt to First Options. That disagreement makes up the merits of the dispute. Second, they disagree about whether they agreed to arbitrate the merits. That disagreement is about the arbitrability of the dispute. Third, they disagree about who should have the primary power to decide the second matter. Does that power belong primarily to the arbitrators (because the court reviews their arbitrability decision deferentially) or to the court (because the court makes up its mind about arbitra-bility independently)? We consider here only this third question.

Id. at 942, 115 S.Ct. 1920 (emphases added).

We quote the above text to illustrate that, contrary to one of Roe’s arguments, First Options is not distinguishable from this case in any meaningful way. This case presents the same three types of disagreements present in First Options. First, Roe and Ladymon disagree as to whether Ladymon is personally liable to Roe — the merits of Roe’s claim. Second, they disagree about whether they agreed to arbitrate the merits — the arbitrability of the dispute. Third, they disagree about who should have the primary power to decide the second matter — the arbitrator or the courts. Indeed, this third issue is the subject of our current discussion.

In First Options, the Supreme Court observed that arbitration, being a matter of contract, is “a way to resolve those disputes — but only those disputes — that the parties have agreed to submit to arbitration.” Id. at 943, 115 S.Ct. 1920. The Court held that the “who decides” question of arbitrability also turns upon the agreement of the parties, and that “a court must defer to an arbitrator’s arbitrability decision when the parties submitted that matter to arbitration.” Id. (emphasis added).

However, the Court went on to discuss how a court should decide whether the parties agreed to submit arbitrability to the arbitrator. The Court stated that, when deciding whether the parties agreed to arbitrate a certain matter, courts should apply ordinary state-law principles governing the formation of contracts, with an important qualification

applicable when courts decide whether a party has agreed that arbitrators should decide arbitrability: Courts should not assume that the parties agreed to arbitrate arbitrability unless there is “elea[r] and unmistakable]” evidence that they did so.

Id. at 944, 115 S.Ct. 1920 (citing AT & T, 475 U.S. at 649, 106 S.Ct. 1415; Warrior & Gulf Nav. Co., 363 U.S. at 583 n. 7, 80 S.Ct. 1347). The Court recognized this qualification reverses the presumption favoring arbitration with respect to “silence or ambiguity about ‘who (primarily) should decide arbitrability’-” Id. at 944-45, 115 S.Ct. 1920. But as the Court noted, this differing treatment is justified given the principle that a party can be forced to arbitrate only those issues it specifically has agreed to submit to arbitration. Id. at 945, 115 S.Ct. 1920.

Reviewing the record, the Court then concluded that First Options could not show that “the Kaplans clearly agreed to have the arbitrators decide (i.e. to arbitrate) the question of arbitrability.” Id. at 946, 115 S.Ct. 1920. Therefore, the question of whether the Kaplans were required to arbitrate their dispute with First Options was “subject to independent review by the courts.” Id. at 947, 115 S.Ct. 1920.

Seven years later, the Supreme Court reiterated that a “question of arbitrability” is an issue for judicial determination unless the parties clearly and unmistakably provide otherwise. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002). In applying this interpretive rule, the Court in Howsam explained that not all “potentially dispositive gateway question[s]” constitute “questions of arbitrability.” Id. It defined the latter phrase to encompass

the kind of narrow circumstance where contracting parties would likely have expected a court to have decided the gateway matter, where they are not likely to have thought that they had agreed that an arbitrator would do so, and, consequently, where reference of the gateway dispute to the court avoids the risk of forcing parties to arbitrate a matter that they may well not have agreed to arbitrate.

Id. at 83-84, 123 S.Ct. 588. As examples of such “questions of arbitrability,” the Court cited cases involving disputes about whether an arbitration contract bound parties who did not sign the agreement (First Options, 514 U.S. at 943-44, 115 S.Ct. 1920), whether an arbitration agreement survived a corporate merger and bound the resulting corporation (John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964)), and whether an arbitration clause in a con-cededly binding contract applied to a particular type of controversy (AT & T, 475 U.S. at 651-52, 106 S.Ct. 1415). See Howsam, 537 U.S. at 84, 123 S.Ct. 588.

Recently, the Supreme Court again confirmed that whether parties have agreed to submit a particular dispute to arbitration is an issue for judicial determination and that “where the dispute at issue concerns contract formation, the dispute is generally for courts to decide.” Granite Rock Co. v. Int’l Bhd. of Teamsters, _ U.S. _, 130 S.Ct. 2847, 2855-56, 177 L.Ed.2d 567 (2010); see also Rent-A-Center, W., Inc. v. Jackson, _ U.S. _, 130 S.Ct. 2772, 2777, 177 L.Ed.2d 403 (2010) (citing First Options for the principle that arbitration is a matter of contract).

The Texas Supreme Court has also stated that under the FAA, “[wjhether an arbitration agreement binds a non[-]signatory is a gateway matter to be determined by courts rather than arbitrators unless the parties clearly and unmistakably provide otherwise.” Labatt, 279 S.W.3d at 643 (citing In re Weekley Homes, 180 S.W.3d at 130 and Howsam, 537 U.S. 79, 83-84, 123 S.Ct. 588 (2002)).

We conclude that whether Roe can require Ladymon to arbitrate her claims against him individually is an “issue of arbitrability.” See Howsam, 537 U.S. at 83, 123 S.Ct. 588. If the court determines that the parties “clearly and unmistakably agreed” to submit arbitrability to the arbitrator, it should defer to the arbitrator’s decision on the issue. See First Options, 514 U.S. at 943, 115 S.Ct. 1920. However, absent “clear and unmistakable evidence” that the parties agreed to the contrary, the primary power to decide such issues lies with the courts — not an arbitrator. See First Options, 514 U.S. at 944, 115 S.Ct. 1920; Howsam, 537 U.S. at 84, 123 S.Ct. 588. Doing so “avoids the risk of forcing parties to arbitrate a matter that they may well not have agreed to arbitrate.” Howsam, 537 U.S. at 83-84, 123 S.Ct. 588.

3. Whose Agreement Are We Looking For?

However, when looking for “clear and unmistakable evidence” that the parties agreed to arbitrate the issue of arbitrability, whose agreement are we looking for— that of the parties to the contract containing the arbitration clause or the would-be parties to the sought-for arbitration?

We find it significant that when the Supreme Court in First Options looked for clear evidence of an agreement to arbitrate arbitrability, it did not even address the terms of the arbitration agreement. In other words, the Court looked for “clear and unmistakable evidence” that the parties to the dispute before the courts (First Options and the Kaplans) agreed to arbitrate the issue of arbitrability, not the parties to the contract containing the arbitration clause (First Options and MKI). See First Options, 514 U.S. at 946-47, 115 S.Ct. 1920 (noting that First Options could not show the Kaplans clearly agreed to have the arbitrators decide arbitrability). This is understandable, as in First Options it was undisputed that the Kaplans were not parties to the agreement containing the arbitration clause.

Moreover, when addressing whether a non-signatory to the arbitration agreement can be required to arbitrate, looking to the intent of the contracting parties on the issue of arbitrating arbitra-bility does not avoid the “risk of forcing parties to arbitrate a matter that they may well not have agreed to arbitrate.” Howsam, 537 U.S. at 83-84, 123 S.Ct. 588. Therefore, a court should decide whether an arbitration contract binds a person who did not sign the contract. Id. (citing First Options, 514 U.S. at 943-46, 115 S.Ct. 1920).

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 arbitrabilit/’ that the courts are primarily responsible for deciding — not the arbitrator. See Howsam, 537 U.S. at 84, 123 S.Ct. 588. 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.

4. Is There “Clear and Unmistakable Evidence” Ladymon Agreed to Arbitrate Arbitrability?

Roe asserts there is clear and unmistakable evidence that Ladymon agreed to arbitrate whether he was bound by the arbitration agreement based on three arguments: (1) Ladymon actually signed the contract and is bound as a representative of Metro LLP; (2) the arbitration clause refers to the AAA rules and those rules allow the arbitrator to decide his own jurisdiction; and (3) Ladymon did not specifically object to the arbitrator’s jurisdiction, he participated in the arbitration, and he invoked the power of the arbitrator by filing his objection.

a. Did Ladymon Agree by Signing as a Partner of Metro LLP ?

Roe argues Ladymon consented to arbitrate claims against him individually because he was “a signatory to the contract” and “a representative of Metro.” Ladymon did sign the contract as a partner of Metro LLP and initialed each page in the blank for “Contractor.” However, the contract identifies the parties to the contract as Roe, the owner, and Metro LLP, the contractor; Ladymon individually is not identified as a party.

Moreover, Ladymon’s signature on the contract does not render him personally a party to the contract because he clearly indicated he was signing on behalf of contractor, Metro LLP, and not on his own behalf. See Eppler, Guerin & Turner, Inc. v. Kasmir, 685 S.W.2d 737, 738 (Tex.App.-Dallas 1985, writ ref'd n.r.e.) (an agent contracting for the benefit of a disclosed principal is not liable on the contract); see also Fed. Deposit Ins. Co. v. K-D Leasing Co., 743 S.W.2d 774, 776 (Tex.App.-El Paso 1988, no writ) (agent’s signature below principal’s name preceded by preposition “by” indicated agent signed on behalf of disclosed principal only, and thus agent was not liable on contract); Restatement (Second) of Agency § 320 (1958) (“Unless otherwise agreed, a person making or purporting to make a contract with another as agent for a disclosed principal does not become a party to the contract.”).

Further, being a partner in a registered limited liability partnership, and thus its “representative,” does not make the partner personally hable for the obligations of the limited liability partnership. Tex.Rev. Civ. Stat. Ann. art. 6132b-3.08(a)(l) (Vernon Supp.2009) (“a partner in a registered limited liability partnership is not individually liable, directly or indirectly, by contribution, indemnity, or otherwise, for debts and obligations of the partnership incurred while the partnership is a registered limited liability partnership”). While an agent of a disclosed principal may agree to substitute his own responsibility for that of the principal or to add his responsibility to that of the principal, there is no indication here that Ladymon did so merely by signing the contract as a partner of a limited liability partnership.

Roe also asserts First Options is “completely distinguishable from the facts in this case because the parties opposing arbitration in First Options [the Kaplans] never signed the contract containing the arbitration clause, whereas ... Ladymon did sign the arbitration contract in this case.” Roe appears to be incorrect; although not discussed by the Supreme Court’s opinion, the court of appeals decision in First Options reveals that Kaplan (the president, a director, and sole shareholder of MKI) signed the original agreement containing the arbitration clause on behalf of MKI. See Kaplan v. First Options of Chi, Inc., 19 F.3d 1503, 1506-07 (3d Cir.1994), aff'd, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). In any event, Ladymon’s signature in this case was only in his representative capacity and we see no distinction between First Options and this case on the basis of that signature.

We reject Roe’s argument that Lady-mon’s execution of the document on behalf of Metro LLP is evidence that he clearly and unmistakably agreed the arbitrator could decide whether he is bound to arbitrate claims against him individually.

b. Did Ladymon Agree Based on Roe’s and Metro LLP’s Agreement to Arbitrate Pursuant to the AAA Rules?

Roe states that “the parties agreed that the AAA Construction Industry Rules governed the proceedings and Rule R-8 provides that the Arbitrator has the power and authority to arbitrate any jurisdictional issues — not the [c]ourts.” However, as discussed above, the entities who agreed to arbitrate under the AAA rules are Metro LLP and Roe, not Lady-mon. As was the case in First Options, the terms of the contracting parties’ agreement to arbitrate is not evidence that a non — contracting party — here Ladymon-agreed to arbitrate or to do so under AAA rules, much less clear and unmistakable evidence of such an agreement. See First Options, 514 U.S. at 946-47, 115 S.Ct. 1920.

We cannot say that Ladymon clearly and unmistakably agreed to submit gateway issues to an arbitrator simply because Roe and Metro LLP agreed to arbitrate in accordance with rules selected by the AAA. Thus we reject Roe’s argument that her agreement with Metro LLP to arbitrate in accordance with the AAA rules shows that Ladymon clearly and unmistakably agreed to submit the gateway issue to the arbitrator.

c. Did Ladymon Waive by His Argument Before the Arbitrator?

Roe also argues that by objecting to the arbitrator that he was not subject to arbitration, Ladymon waived any objection to the arbitrator deciding whether Lady-mon was bound to arbitrate Roe’s claims against him individually. She argues La-dymon’s objection that he never signed an arbitration agreement individually is not an objection to the arbitrator’s authority to decide the dispute. We disagree. Lady-mon’s objection — that he never agreed to arbitrate disputes against him individually — is an objection that the arbitrator had no power to bind him to a resolution of those disputes.

Roe also argues Ladymon participated in the arbitration proceedings and actually invoked the arbitrator’s power to decide the question of arbitrability by filing his objection requesting he be dismissed. The Supreme Court rejected such an argument in First Options, 514 U.S. at 946, 115 S.Ct. 1920 (“To the contrary, insofar as the Kap-lans were forcefully objecting to the arbitrators deciding their dispute with First Options, one naturally would think that they did not want the arbitrators to have binding authority over them.”). Just as the Kaplans did not manifest an intent to be bound by the arbitrators’ decision by filing a memorandum objection to the arbitrators’ jurisdiction over them, so too La-dymon’s submission of a written objection to the arbitrator’s jurisdiction over him individually did not manifest an intention that he would be bound by the arbitrator’s decision. This conclusion is supported by the obvious explanation for Ladymon’s presence before the arbitrator (as a partner of Metro LLP) and because of authority like First Options that a person might argue arbitrability to the arbitrator without losing his right to independent court review. Id.

Roe’s argument that Ladymon waived his objection to the arbitrator’s power over him by objecting to the arbitrator is, of course, circular. It would be a harsh rule indeed to require a person to preserve an issue by arguing it to the arbitrator and at the same time conclude he waived the issue by making the objection. We conclude Ladymon, by objecting to the arbitrator’s jurisdiction over him, did not thereby submit himself to the very jurisdiction he was challenging. See First Options, 514 U.S. at 946, 115 S.Ct. 1920. We reject Roe’s waiver argument.

d. Conclusion

Whether the arbitration agreement binds Ladymon as a non-signatory is for the courts to decide, unless there is “clear and mistakable evidence” that Ladymon agreed the arbitrator would make that decision. See Howsam, 537 U.S. at 84, 123 S.Ct. 588; First Options, 514 U.S. at 944, 115 S.Ct. 1920. On this record, Roe has not shown that Ladymon “clearly agreed to have the arbitrator[] decide (ie., to arbitrate) the question of arbitrability.” First Options, 514 U.S. at 946, 115 S.Ct. 1920. Because the non-contracting party (here Ladymon) “did not clearly agree to submit the question of arbitrability to arbitration, the [district court] was correct in finding that the arbitrability of the [Lady-mon/Roe] dispute was subject to independent review by the courts.” Id. at 947, 115 S.Ct. 1920. Therefore, the trial court had the primary responsibility to decide the question of whether Ladymon is bound by the arbitration provision in Roe’s contract with Metro LLP. Accordingly, the trial court correctly concluded the arbitrability of the Roe-Ladymon dispute was subject to its de novo determination, i.e. without deference to the arbitrator’s prior decision on the issue.

B. Did the Trial Court Correctly Determine Ladymon Was Not Bound by the Arbitration Agreement?

Having determined the courts have the primary power to decide the question, we turn to the correctness of the trial court’s decision: can Ladymon, a nonparty to the arbitration agreement, be compelled to arbitrate the claims against him? For the same reasons discussed above, we review the trial court’s decision de novo.

As mentioned above, in some circumstances rules of contract law or agency can bind a nonparty to a contract, including an arbitration provision. See In re Weekley Homes, 180 S.W.3d at 129 (“both state and federal courts have recognized [that] non-parties may be bound to an arbitration clause when the rules of law or equity would bind them to the contract generally”); In re Kellogg Brown & Root, Inc., 166 S.W.3d at 738.

We have addressed and rejected Roe’s arguments that Ladymon is bound by the arbitration provision because he signed the agreement on behalf of Metro LLP and that he waived his objections to arbitrating the claims against him. Roe’s remaining arguments are that the trial court erred by vacating the arbitrator’s award against La-dymon because, even though he was a nonparty, he was bound to arbitrate her claims against him as a successor to Metro LLP and as an agent of Metro LLP under the rule in In re Vesta Insurance Group, Inc., 192 S.W.3d 759 (Tex.2006) (per curiam).

1. Is Ladymon Bound as a Successor to Metro LLP?

Roe argues that Ladymon consented to arbitrate her claims against him individually because he was “a successor” to Metro LLP, and that Paragraph 29(b) of the contract (the “successors and assigns” clause) requires him to arbitrate even if he did not sign the contract individually. Such clauses generally speak to what happens when a party to the contract dies or ceases to exist as a legal entity. They make a contract expressly assignable and have the effect of making a successor or assignee obligated to perform the assignor’s obligations without an express agreement of assumption.

Roe’s argument that Ladymon became a successor to Metro LLP is based on his deposition testimony that there was no formal assignment of the contract and he continued to complete the project after Metro LLP converted to Metro LP. However, we conclude the record does not support Roe’s contention that Ladymon individually became a successor to Metro LLP after its conversion.

The partnership filings submitted to the arbitrator in Ladymon’s post-hearing brief, and which are contained in the trial court’s record, show that Metro LLP withdrew its registration as a limited liability partnership and the same day converted to a limited partnership, Metro LP, with Lady-mon becoming a limited partner in that partnership. See Tex.Rev.Civ. Stat. Ann. art. 6132b-9.05. By partnership law, Metro LLP’s obligations transferred to Metro LP as a result of this conversion. Id. art. 6132b-9.05(h)(3) (“all liabilities and obligations of the converting entity shall continue to be liabilities and obligations of the converted entity in its new organizational form without impairment or diminution by reason of the conversion”). Thus, notwithstanding Ladymon’s lay opinions about the legal effect of the partnership filings, Metro LP — and not Ladymon — was the successor to Metro LLP’s contract with Roe.

As described above, Ladymon was not personally liable on Metro LLP’s contract before its conversion to Metro LP, nor was he after the conversion. Thus, we reject Roe’s argument that Ladymon was bound to arbitrate the claims against him individually because he was a successor to Metro LLP.

2. Is Ladymon Bound as Agent for Metro LLP?

Roe argues Ladymon must arbitrate the claims against him individually because he was an agent or representative of Metro LLP and “agents and representatives of parties to contracts containing arbitration clauses are properly bound to arbitrate with the entity that signed the agreement,” citing In re Vesta Insurance Group, Inc., 192 S.W.3d at 762-63.

In re Vesta involved a different situation than the one before us. There, a signatory to a contract containing an arbitration clause filed a tortious interference suit against non-signatory officers and agents of the other party to the contract. 192 S.W.3d at 762-63. The signatory plaintiff was resisting arbitration while the non-signatory defendants sought to hold the signatory plaintiff to abide by his agreement to arbitrate. Id. The court recognized that estoppel principles may require a nonparty to arbitrate if it seeks through its claim to obtain a direct benefit from the contract containing the arbitration clause. Id. In re Vesta stands for the proposition that a signatory plaintiff cannot avoid its agreement to arbitrate disputes simply by bringing tortious interference claims against the officers, agents, or affiliates of the other signatory to the contract. Id. Here, the party resisting arbitration did not sign the agreement to arbitrate. Thus In re Vesta does not support the argument that Roe, a signatory, may force Ladymon, a non-signatory, to arbitrate against his will by claiming he is an agent or representative of Metro LLP.

The application of the estoppel theory is illustrated by Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 345 F.3d 347, 361 (5th Cir. 2003). In Bridas, the Fifth Circuit recognized that allowing non-signatories to invoke an arbitration provision against someone who signed the arbitration agreement prevents “a signatory from avoiding arbitration with a non[-]signatory when the issues the non[-]signatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed.” Id. (quoting Thomson-CSF, S.A. v. Am. Arbitration Ass’n, 64 F.3d 773, 779 (2d Cir.1995)). But “[bjecause arbitration is guided by contract principles, the reverse is not also true: a signatory may not estop a non[-]signatory from avoiding arbitration regardless of how closely affiliated the non[-]signatory is with another signing party.” Id. (quoting MAG Portfolio Consultant, GMBH v. Merlin Biomed Group L.L.C., 268 F.3d 58, 62 (2d Cir.2001)) (emphasis added); see also Merrill Lynch, Pierce, Fenner & Smith, Inc., 195 S.W.3d at 814-15.

This case presents the “reverse” situation referred to in Bridas and MAG Portfolio. Here, unlike In re Vesta, the non-signatory (Ladymon) does not want to arbitrate Roe’s claims against him individually, and there is no evidence he agreed to do so. Nor is there any basis to “estop” him from refusing to arbitrate because he never agreed to arbitrate. As we discussed earlier, by signing the contract as an agent for a disclosed principal, Lady-mon did not become personally bound by the terms of that contract, including the arbitration clause.

3. Conclusion

The purpose of the FAA is to put arbitration agreements on equal footing with other contracts, to make them “as enforceable as other contracts, but not more so.” Prima Paint Corp., 388 U.S. at 404 n. 12, 87 S.Ct. 1801. Because an agent for a disclosed principal is not liable on the principal’s contract, concluding such an agent is bound by an arbitration clause in that contract when he would not be bound by other provisions would make arbitration agreements “easier to enforce than other contracts, contrary to the [Federal] Arbitration Act’s purpose.” Merrill Lynch Trust, 235 S.W.3d at 194 (“As other contracts do not become binding on nonparties due to concerted misconduct, allowing arbitration contracts to become binding on that basis would make them easier to enforce than other contracts, contrary to the Arbitration Act’s purpose.”); In re Kellogg Brown & Root, Inc., 166 S.W.3d at 740.

We conclude the trial court correctly determined that the gateway issue of arbi-trability was for the court to decide and that Ladymon is not individually bound by the arbitration provision in Metro LLP’s contract with Roe. Thus, the arbitrator exceeded his power by entering an award against Ladymon jointly and severally with Metro LLP. See 9 U.S.C. § 10(a)(4)' (court may make an order vacating an award “where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made”). We overrule Roe’s sole issue on appeal.

III. Metro LLP’s Cross-Appeal

We turn now to Metro LLP’s cross-appeal. Metro LLP argues the trial court should have vacated the award because the arbitrator (1) refused to postpone the arbitration hearing after a showing of sufficient cause to do so, and (2) demonstrated evident partiality in favor of Roe.

A. Applicable Law

Under the FAA, we review the trial court’s decision to confirm an arbitration award de novo. See Myer, 232 S.W.3d at 407. Our review of the award itself, however, is exceedingly deferential and narrow. See id.; see also Exeeutone Info. Sys., Inc. v. Davis, 26 F.3d 1314, 1320 (5th Cir.1994). An arbitration award must be confirmed unless it is vacated, modified, or corrected under one of the limited grounds in sections 10 and 11 of the FAA. See 9 U.S.C. §§ 9-11; see also Roehrs v. FSI Holdings, Inc., 246 S.W.3d 796, 805-06 (Tex.App.-Dallas 2008, pet. denied).

The arbitrator’s misconduct in refusing to postpone the arbitration hearing after a showing of sufficient cause is one ground for vacating an arbitration award. 9 U.S.C. § 10(a)(3). However, because the purpose of the policy favoring arbitration is to promote expeditious resolution of disputes, “a court’s review of the arbitrator’s decision to postpone or not postpone the hearing is quite limited.” ARW Exploration Corp. v. Aguirre, 45 F.3d 1455, 1463 (10th Cir.1995). Ah award may also be vacated for “evident partiality” of the arbitrator. 9 U.S.C. § 10(a)(2).

B. Analysis

Metro LLP argues Roe disclosed her witnesses and documents long after the dates set in the original scheduling order. It contends the untimely disclosures prevented it from adequately preparing for the hearing. The scheduling order required Roe to disclose her witnesses and documents two weeks before the February hearing date. The hearing was later reset to May 7, and Roe served her disclosure two weeks before the May hearing. She also filed a supplemental disclosure on May 4, listing a new expert witness and additional documents supporting her claims. The arbitrator denied Metro LLP’s written objections and request for a continuance based on the nature of the alleged construction defects disclosed in Roe’s June 14, 2006 demand letter, the findings of the TRCC inspection report in October 2006, the hearing had been continued once already, and Metro LLP had ample opportunity to hire an attorney and prepare a response to Roe’s claims.

Metro LLP argues the arbitrator’s evident partiality was shown by his denying the continuance, and by his comment during a break that Metro LLP needed to finish presenting its evidence and set a post-hearing briefing schedule so that he could “finally get this lady some relief.”

The trial court stated Metro LLP had raised serious concerns about the fairness of the arbitration proceedings, but recognized that parties to an arbitration agreement knowingly give up the procedural protections of the court system. See Raiford v. Merrill Lynch, Pierce, Fenner & Smith, 903 F.2d 1410, 1413 (11th Cir.1990) (“When the parties agreed to submit to arbitration, they also agreed to accept whatever reasonable uncertainties might arise from the process.”). Reviewing the limited record before the court and applying the deferential standard, the trial court concluded Metro LLP had not met its high burden to show the arbitrator committed misconduct in denying the continuance or engaged in evident partiality.

We have reviewed the record and the trial court’s decision and reach the same conclusion. Metro LLP does not identify what evidence it could have obtained had it been granted a continuance and how it was prejudiced by the denial of the continuance. See Laws v. Morgan Stanley Dean Witter, 452 F.3d 398, 400 (5th Cir.2006) (“Absent even a representation that the materials produced on the eve of arbitration were important to his case or that a continuance might have altered the outcome of the arbitration, we cannot conclude that Laws was deprived of a fair hearing.”). Nor does the arbitrator’s statement on this limited record rise to the level of evident partiality required to vacate the award. See Babcock & Wilcox Co. v. PMAC, Ltd., 863 S.W.2d 225, 234 (Tex.App.-Houston [14th Dist.] 1993, writ denied) (“‘Evident partiality' within the meaning of section 10(a)(2) means more than mere appearance of bias.”).

Finally, Metro LLP argues the award should be modified to eliminate a double recovery of damages. See 9 U.S.C. § 11. While the award appears to include damages for both “loss of use” of the property during repairs and “alternative housing,” on this limited record and given the conflicting evidence presented to the arbitrator, we cannot say the award includes a material miscalculation of figures or a mistake warranting modification of the award. The award indicates these damages reflect the mortgage payments for six months and rental cost of alternative housing for that period. An arbitrator has broad discretion in fashioning a remedy appropriate to the case. See Am. Laser Vision v. The Laser Vision Inst., L.L.C., 487 F.3d 255, 258-59 (5th Cir.2007), abrogated on other grounds by Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008). Accordingly, we reject Metro LLP’s sole issue on its cross-appeal.

IV. Conclusion

We have overruled the sole issue presented in Roe’s appeal and Metro LLP’s cross-appeal. Accordingly, we affirm the trial court’s judgment.

      . The entire arbitration provision states:
      18. MEDIATION-ARBITRATION/LIMITATION OF CLAIMS: It is the policy of the State of Texas to encourage the peaceable resolution of disputes through alternative dispute resolution procedures. Owner and Contractor hereby agree that any controversy or claim or matters in question between the parties including, but not limited to, any matter arising out of or relating to (a) this Contract, and any amendments thereto, (b) any breach thereof, (c) the construction transaction reflected in the Contract, (d) the design or construction of the Improvements, (e) any alleged fraud, misrepresentations or breach of warranties, express or implied, (f) claims for defective design or construction of the Improvements, (g) intentional and/or negligent infliction of emotional distress, (h) violations of the Texas Deceptive Trade Practices-Consumer Protection Act, (i) violations of the Texas Residential Construction Liability Act, and/or (j) any other cause of action relating to or arising out of the construction and/or sale of the Improvements by Contractor, (herein referred to collectively as a "Dispute"), shall be submitted to mediation with the American Arbitration Association (“AAA") where the parties will endeavor to resolve the Dispute in an amicable manner. In the event any Dispute cannot be resolved by mediation, the Dispute shall be submitted to the American Arbitration Association (the “AAA”) for binding arbitration pursuant to Title 9 of the United States Code, which the parties hereto acknowledge and agree applies to the transaction involved herein, and in accordance with the Construction Industry Arbitration Rules of the AAA or such other rules as the AAA may deem applicable. If Title 9 of the United States Code is inapplicable to any such claim, dispute or controversy for any reason, such arbitration shall be conducted by the AAA pursuant to the Texas General Arbitration Act and in accordance with the Construction Industry Arbitration Rules of the AAA or such other rules as the AAA may deem applicable. In any such arbitration proceeding: (i) all federal and state law (including Chapter 27 of the Texas Property Code) and all statutes of limitations which would otherwise be applicable shall apply; and (ii) the proceeding shall be conducted by a single arbitrator. The arbitrator shall be selected by the process of appointment from a panel pursuant to the applicable procedures of the AAA. Any award rendered in any such arbitration proceeding shall be final and binding, and judgment upon any such award may be entered in any court having jurisdiction. If any party to this Contract files a proceeding in any court to resolve any such controversy, dispute or claim, such action shall not constitute a waiver of the right of such party or a bar to the right of any other party to seek arbitration of that or any other claim, dispute or controversy, and the court shall, upon motion of any party to the proceeding, direct that such controversy, dispute or claim be arbitrated in accordance herewith.

      . These theories include breach of the implied warranty of habitability, breach of express and implied warranties, breach of contract, negligence, fraud, and violations of the Texas Residential Construction Liability Act and the Deceptive Trade Practices-Consumer Protection Act ("DTPA”).

      . The first three objections argued Roe's late disclosures of witnesses and damage calculations and the failure of the parties to mediate prior to arbitration required a continuance.

      . Metro LLP is named as an appellee and as the cross-appellant in its brief. The briefs of the parties refer to Metro LLP as the party to the arbitration award and the trial court’s judgment. No party complains or suggests that Metro LP is the correct party.

      . Although we look to decisions of the lower federal courts and other state courts, only decisions of the United States Supreme Court, the Texas Supreme Court, and prior decisions of this Court are binding precedent. See In re Morgan Stanley & Co., 293 S.W.3d 182, 189-90 (Tex.2009); Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex.1993) ("While Texas courts may certainly draw upon the precedents of the Fifth Circuit, or any other federal or state court, in determining the appropriate federal rule of decision, they are obligated to follow only higher Texas courts and the United States Supreme Court.”).

      . As explained in Marciano v. MONY Life Ins. Co., the presumption in favor of arbitration applies only to the scope of an open-ended arbitration agreement, never to the existence of such an agreement or to the identity [sic] the parties who might be bound by such an agreement. If A and B have an agreement to arbitrate any dispute that arises between them, there is a presumption that, if a dispute arises between them, the dispute is within the scope of the agreement. However, if a dispute arises between A and C, even if B and C are closely related, there is no "presumption” that A has agreed to arbitrate its dispute with C.

        Marciano v. MONY Life Ins. Co., 470 F.Supp.2d 518, 526, n. 12 (E.D.Pa.2007).

      . State law generally governs whether a person has agreed to arbitrate, and federal law governs the scope of the arbitration agreement. Labatt, 279 S.W.3d at 643. The question whether non-signatories are bound by an arbitration agreement is distinct and may involve either or both issues. Id. Although the Supreme Court has not directly addressed whether state or federal law governs, it recently spoke of the issue in purely state-law terms. See Arthur Andersen LLP v. Carlisle, _ U.S. _, 129 S.Ct. 1896, 1902, 173 L.Ed.2d 832 (2009) (neither § 2 nor § 3 of the FAA "purports to alter background principles of state contract law regarding the scope of agreements (including the question of who is bound by them)”). Until the question is resolved, we are governed by the Texas Supreme Court's directive to apply "state substantive law and endeavor to keep it consistent with federal law.” Labatt, 279 S.W.3d at 643.

      . The Court continued:
      If, on the other hand, the parties did not agree to submit the arbitrability question itself to arbitration, then the court should decide that question just as it would decide any other question that the parties did not submit to arbitration, namely, independently-

        Id. at 943, 115 S.Ct. 1920 (citations omitted).

      . In contrast, the Court in Howsam noted that it had found the phrase "question of arbitra-bility" not applicable in other kinds of general, "procedural” circumstances where parties would likely expect that an arbitrator would decide the gateway matter. See Howsam, 537 U.S. at 84-85, 123 S.Ct. 588.

      . Quoting both Volt and First Options, the Court made clear that the federal policy favoring arbitration cannot be "divorced from the first principle that underscores all of our arbitration decisions: Arbitration is strictly 'a matter of consent,’ and thus ‘is a way to resolve those disputes — but only those disputes — that the parties have agreed to submit to arbitration.’ ” Granite Rock, 130 S.Ct. at 2857 (quoting Volt, 489 U.S. at 479, 109 S.Ct. 1248; First Options, 514 U.S. at 943, 115 S.Ct. 1920).

      . When a non-signatory resists arbitration, looking at what the signatories to the arbitration agreement said about arbitrability creates a "chicken and egg” situation:
      But what if the challenge to the contract is that it never came into being? Since "arbitration is a matter of contract”, the issue must be one for the court to decide. Otherwise, an arbitrator would be put in the position of deciding whether he was authorized to decide the parties’ dispute, concluding either that he was not authorized, a logical circularity, or that he was, and raising himself by his own bootstraps. Thus, whether a person is bound by a contract he never signed is an issue for the court.

        In re Morgan Stanley & Co., 293 S.W.3d 182, 192-93 (Tex.2009) (Hecht, J., dissenting) (citations omitted); see also Dwayne E. Williams, Binding Nonsignatories to Arbitration Agreements, 25 Franchise L.J. 175, 182 (2006) (arguing the question is always for the courts to decide because the arbitrator cannot use the doctrines that may bind a non-signatory to an arbitration clause to bootstrap his own jurisdiction).

      . Thus, “courts should order arbitration of a dispute only where the court is satisfied that neither the formation of the parties' arbitration agreement nor (absent a valid provision specifically committing such disputes to an arbitrator) its enforceability or applicability to the dispute is in issue. Where a party contests either or both matters, ‘the court’ must resolve the disagreement.” Granite Rock, 130 S.Ct. at 2857-58 (citing First Options, 514 U.S. at 943, 115 S.Ct. 1920).

      . The signature block for the contractor reads:
      CONTRACTOR:
      METRO TOWNHOMES & HOMES, L.L.P.
      By: /s/ Blane Ladymon

      Printed Name: Blane Ladymon

      Its: Partner

      . See also Bel-Ray Co. v. Chemrite Ltd., 181 F.3d 435, 445 (3d Cir.1999) (“Generally, of course, an agent of a disclosed principal, even one who negotiates and signs a contract for her principal, does not become a party to the contract.”); Restatement (Second) of Agency § 156 & cmt. a (1958).

      . In support of her argument, Roe also relies on a provision in the Roe-Metro LLP contract stating that the contract was "binding upon and inure[s] to the benefit of the parties hereto and their respective ... representatives,” but cites no authority that a general clause dealing with assignment of a contract alters the liability of an agent for a disclosed principal. As discussed below, we do not see how this assignment language substitutes or adds the agent’s (Ladymon's) personal responsibility to that of the principal (Metro LLP).

      .After later settlement negotiations, the Kaplans, MKI, and First Options signed four separate documents, only one of which contained an arbitration clause and only First Options, MKI and another entity signed that document. Id. Individually, the Kaplans signed only a letter agreement that did not include an arbitration clause. Id.

      . See, e.g., AGCO Corp. v. Anglin, 216 F.3d 589, 593 (7th Cir.2000) (“If a party willingly and without reservation allows an issue to be submitted to arbitration, he cannot await the outcome and then later argue that the arbitrator lacked authority to decide the matter.... If, however, a party clearly and explicitly reserves the right to object to arbitrability, his participation in the arbitration does not preclude him from challenging the arbitrator's authority in court.”) (citations omitted); see also, Tex. Civ. Prac. & Rem.Code Ann. § 171.088(a)(4) (Vernon 2005) (recognizing ground for vacating award for lack of an agreement to arbitrate where applicant raised objection in arbitration hearing). Because the FAA applies here, the Texas statutory grounds for vacating an arbitration award do not apply in this case. See Chestnut Energy Partners, 300 S.W.3d at 399.

      . See Myer v. Americo Life, Inc., 232 S.W.3d 401, 407 (Tex.App.-Dallas 2007, no pet.); see also First Options, 514 U.S. at 947-48, 115 S.Ct. 1920 (noting that "courts of appeals should apply ordinary, not special, standards when reviewing district court decisions upholding arbitration awards”). The issues before us are legal questions reviewed de novo; the facts regarding whether Ladymon was bound by the arbitration agreement are undisputed.

      . Paragraph 29(b), states: "This Contract shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, representatives, successors and assigns where permitted by this Contract.”

      . See Penick v. Eddleman, 291 S.W. 194, 195 (Tex. Comm'n App.1927, judgm’t adopted); Kirby Lumber Co. v. R.L. Lumber Co., 279 S.W. 546, 549 (Tex.Civ.App.-Beaumont 1926, no writ); 6A C.J.S. Assignments § 34 (2004) ("Parties to a contract may also agree to make an otherwise unassignable contract assignable by inserting a provision to the effect that the contract binds the parties’ successors and assigns.”); 29 R. Lord, Williston on Contracts §§ 74:40, 74F:3 (4th ed.2003).

      . We reached the same conclusion in connection with another contract between Metro LLP and a different homeowner. See In re Hawthorne Townhomes, L.P., 282 S.W.3d 131, 138-39 (Tex.App.-Dallas 2009, orig. proceeding) (concluding Metro LP was the successor to Metro LLP and bound by the arbitration provision in a contract with the homeowner signed by Ladymon on behalf of Metro LLP).

      . See Tex.Rev.Civ. Stat. Ann art. 6132b-3.08(a)(1).

      . Ladymon was not liable on that contract as a limited partner of Metro LP. See Tex.Rev. Civ. Stat. Ann. art. 6132a-l § 3.03(a), (b)(1).

      . This is referred to as "direct benefits estoppel.” See Merrill Lynch, Pierce, Fenner & Smith, Inc., 195 S.W.3d at 816. Equitable estoppel will also estop a signatory plaintiff from refusing to arbitrate claims related to the contract containing an arbitration clause against non-signatory defendants. Id. at 814-15 (discussing Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524, 527 (5th Cir.2000)); see also Meyer v. WMCO-GP, L.L.C., 211 S.W.3d 302, 304 (Tex.2006) ("A person who has agreed to arbitrate with one party may in some cases be required to arbitrate related disputes with others.”).

      . We recognize that in In re Hawthorne, Ladymon was also a non-signatory defendant; there, however, he chose to arbitrate with an unwilling signatory, Branch. In re Hawthorne, 282 S.W.3d at 135. While a non-signatory defendant (like Ladymon) may "es-top” a signatory plaintiff (like Branch) from avoiding arbitration of claims relating to the plaintiff’s arbitration contract, a signatoiy plaintiff (like Roe) cannot "estop” a non-sig-natoiy defendant (like Ladymon) from resisting arbitration regardless of how closely related Ladymon is to the other signing party (Metro LLP). See Merrill Lynch, Pierce, Fenner & Smith, 195 S.W.3d at 815. A person may not, of course, gamble on the outcome of litigation or arbitration and then switch to the other forum. See AGCO Corp., 216 F.3d at 593; Perry Homes, 258 S.W.3d at 600. At least where a nonparty, like Ladymon, objects that he never signed an agreement to arbitrate, we see no legal rule preventing him from choosing litigation in this case simply because he chose arbitration in another case under a different contract with a different party. Therefore, our holding in In re Hawthorne is not inconsistent with our holding here. Moreover, the arbitration provision in Hawthorne was quite different from the provision here and expressly included disputes between the purchaser and the builder and their "representatives, employees, subcontractors, independent contractors, or agents.” Hawthorne, 282 S.W.3d at 136, 139.

      . See Flink v. Carlson, 856 F.2d 44, 46 (8th Cir.1988) ("Signing an arbitration agreement as agent for a disclosed principal is not sufficient to bind the agent to arbitrate claims against him personally.”).


author: G. ALAN WALDROP, Justice.

text:
    DELTA AIR LINES, INC., Appellant, v. Susan COMBS, Comptroller of Public Accounts of the State of Texas; and Greg Abbott, Attorney General of the State of Texas, Appellees.
    No. 03-09-00312-CV.
    Court of Appeals of Texas, Austin.
    Aug. 3, 2010.

      John K. Hicks, Ray Langenberg, Mark W. Eidman, Scott, Douglass & McConnico, L.L.P., Austin, TX, for Appellant.
    Dennis M. McKinney, Assistant Attorney General, Austin, for Appellee.
    Before Chief Justice JONES, Justices WALDROP and HENSON.
   OPINION

G. ALAN WALDROP, Justice.

This is a suit for a tax refund. Appellant Delta Air Lines, Inc. filed suit against appellees Susan Combs, the Texas Comptroller of Public Accounts, and Greg Abbott, the Attorney General of Texas, for a refund of sales tax paid on purchases of janitorial and maintenance services. The district court entered a take nothing judgment against Delta. Delta asserts that its purchases are exempt from taxation as “sales for resale.” See Tex. Tax Code Ann. § 151.302(a) (West 2008). We affirm the judgment of the district court.

Background

Delta conducts airline operations at the Dallas/Fort Worth International Airport and Houston’s George Bush Intercontinental Airport. To occupy terminal space at those locations, Delta entered into lease agreements with the Dallas/Fort Worth International Airport Board and the City of Houston (collectively, the “Airports”). Under each agreement, Delta agreed to be responsible for janitorial and maintenance services on the occupied premises.

Delta contracted with four companies for the janitorial and maintenance services required under its agreements with the Airports. Delta paid sales tax on these transactions for the period of February 1, 1993, through December 31,1996.

Delta filed a claim with the Comptroller for a refund of the sales tax paid on the amounts paid to the janitorial and maintenance service companies. The Comptroller denied Delta’s claim. After exhausting its administrative remedies, Delta filed suit in district court on February 13, 2004, challenging the denial of its refund claim. See id. § 112.151 (West 2008). The parties filed competing motions for summary judgment. On May 8, 2008, the district court granted the Comptroller’s motion for summary judgment, denied Delta’s motion for summary judgment, and entered a take nothing judgment in favor of the Comptroller. Delta appeals.

Analysis

We review the district court’s summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex.2004). Under the “traditional” standard, a summary judgment should be granted only when the movant establishes that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.2003). When, as here, both parties file motions for summary judgment and the court grants one and denies the other, we must decide all questions presented and render the judgment that the trial court should have rendered. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000). We must affirm the summary judgment if any ground presented to the district court by the Comptroller is meritorious. Pickett v. Texas Mut. Ins. Co., 239 S.W.3d 826, 840 (Tex.App.-Austin 2007, no pet.).

Statutory exemptions from taxation are strictly construed because “they undermine equality and uniformity by placing a greater burden on some taxpaying businesses and individuals rather than placing the burden on all taxpayers equally.” North Alamo Water Supply Corp. v. Willacy County Appraisal Dist., 804 S.W.2d 894, 899 (Tex.1991). Consequently, the burden of proof for showing that the exemption applies is on the claimant. See id. The exemption must affirmatively appear in the statutory language, and all doubts are resolved in favor of the taxing authority and against the claimant. See Bullock v. National Bancshares Corp., 584 S.W.2d 268, 272 (Tex.1979).

There is no dispute that the janitorial and maintenance services at issue are “real property services,” see Tex. Tax Code Ann. § 151.0048(a)(4) (West 2008), which are “taxable services,” see id. § 151.0101(a)(ll) (West 2008), and subject to sales tax, see id. §§ 151.010, .051(a) (West 2008).

However, Delta contends that its purchases of such services fall within the “sale for resale” tax exemption. The sale for resale of a taxable item is exempted from sales tax. See id. § 151.302(a). A sale for resale includes:

a sale of ... a taxable service to a purchaser who acquires the ... service for the purpose of reselling it ... in the normal course of business in the form or condition in which it is acquired or as an attachment to or integral part of other tangible personal property or taxable service.

Id. § 151.006(a)(1) (West 2008). Delta argues that, in accordance with its agreements with the Airports, its purchases of janitorial and maintenance services are for the purpose of reselling those services to the Airports in the normal course of its business.

We disagree. Delta does not purchase the janitorial and maintenance services for the purpose of resale. Delta purchases the services for the purpose of fulfilling its obligations under its agreements with the Airports. These agreements require Delta to keep the leased premises in a clean, orderly, and operable condition. Based on the terms of the agreements, we cannot conclude that Delta’s fulfilling such obligation constitutes the performance of a taxable janitorial or maintenance service for the Airports and, therefore, constitutes a sale to the Airports. See id. § 151.005(3) (West 2008) (defining “sale” to include “the performance of a taxable service”). The Airports are not purchasing or acquiring janitorial, maintenance, or any related services from Delta. They are simply leasing real property to Delta with the requirement that Delta maintain the space it is leasing. Delta can do this however it wants within the parameters of its agreements with the Airports. Delta’s decision to purchase janitorial and maintenance services from a third party provider — rather than performing the services itself— does not transform its obligation under the agreements with the Airports into a sale of janitorial and maintenance services to the Airports. Such purchases are Delta’s chosen means of accomplishing its contractual obligations under its lease agreements. The Airports lease terminal space to Delta. In connection with this transaction, the agreements establish that Delta is the party responsible to ensure that those janitorial and maintenance services that are required to keep the leased premises clean, orderly, and operable are, in fact, performed. This is not a sale of janitorial and maintenance services to the Airports, and therefore, Delta’s purchase of janitorial and maintenance services under these circumstances is not a sale for resale.

We affirm the judgment of the district court.


author: DAVID GAULTNEY, Justice.

text:
    Phillip David PACE, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 09-09-00182-CR.
    Court of Appeals of Texas, Beaumont.
    Submitted April 14, 2010.
    Decided Aug. 4, 2010.

      William E. Harrison, LaBella & Associates, PLLC, Conroe, for appellant.
    Brett W. Ligón, Dist. Atty., Jeredith Jones, Michael C. Young, Asst. Dist. At-tys., Conroe, for state.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

DAVID GAULTNEY, Justice.

Phillip David Pace, Jr. pled guilty to possession of marijuana. The trial court adjudicated his guilt, sentenced him to 180 days in jail, suspended the imposition of the sentence, and placed him on community supervision for one year. Pace appeals from the trial court’s denial of his motion to suppress. Pace contends the consent given by his mother to enter the residence was invalid; the officer exceeded the scope of any consent given; Pace did not consent to entry into his bedroom; and the officer did not have probable cause to search Pace’s bedroom. The record supports the trial court’s finding that the officer had a reasonable, articulable suspicion of danger, and he acted properly to secure his own safety. At that point, the evidence was in plain view. We conclude the trial court did not err in denying the motion to suppress.

STANDARD OF REVIEW

Three witnesses testified at the hearing on the motion to suppress: Officer Bryan Clack, Phillip Pace (the defendant), and defendant’s mother Leesa Pace. We review the trial court’s decision on a motion to suppress under a bifurcated standard. Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App.2010). When the trial court makes express findings of fact, we view the evidence in the light most favorable to the ruling and determine whether the evidence supports the factual findings. Id. We review de novo the trial court’s application of the law of search and seizure to the facts. Id.

Officer Clack’s Testimony

Officer Clack received a call from dispatch to go to a residence “for a welfare check[,]” because there were “children in the home possibly in danger.” He knew that Leesa Pace was leasing the residence, and that appellant was living in the house with her. Clack testified that a welfare check includes a check for possible dangers such as drugs, electrical hazards and lack of cleanliness. The concern at this residence was drugs, specifically marijuana. A three-month-old child was visiting at the home for the weekend. Clack testified the police “had been informed that [appellant] was using marijuana at that location on other occasions[,]” but officers had not found any there in the past.

When Clack arrived at the residence, he found no child there. Clack discovered that Ms. Pace would be returning soon with the child. Appellant answered Clack’s knock on the door and explained his mother was not at home. The officer testified he did not ask appellant for permission to search the house. Clack spoke by phone with Ms. Pace, with whom he had contact in the past. Clack explained to Ms. Pace that “there was a welfare check on the safety of her grandchild.” Ms. Pace told Clack she had her daughter and granddaughter with her, and they were returning to the house.

Clack informed appellant, who was standing in the doorway, that “his mother had given [Clack] consent to check the house to see if there was any danger to the children.” Clack testified appellant said he wanted to put on a pair of boxers, although he was wearing a pair of shorts. Clack testified appellant then “grabbed the door and tried to slam it, and I noticed that he was running away from me and towards his bedroom.” Clack’s foot was in the doorway, and the door did not shut. Clack testified he did not enter the house until appellant “evaded me and tried to run into his bedroom.”

Concerned that appellant might be going to get a weapon or to destroy evidence, Clack testified “[f]or my safety, I followed him.” The officer followed appellant down the hallway and observed him go into his bedroom. The officer believed he did not need permission to enter the bedroom, because he was concerned for his own safety. Clack went into the room and observed appellant attempting “to dispose of the marijuana” that was in plain view.

Leesa Pace

Ms. Pace testified she received a call from Officer Clack, who had helped her with a prior case. Clack told her he was talking to appellant at the front door of her house. Ms. Pace testified Clack asked her if he could enter the house to see if it was suitable for the baby, and she said, “sure.” She explained she gave consent to the officer’s check on the cleanliness of the house and for the presence of food in the house, but did not give Clack consent to go into appellant’s room. She explained there is a lock on appellant’s bedroom door, and she normally knocks when she enters his room.

Phillip Pace

Appellant testified that he opened the front door after the officer knocked. The officer told appellant a welfare check needed to be done. Appellant explained the house was not his, and he told the officer he could not search it. Officer Clack then made a cell phone call out of appellant’s hearing. The officer told appellant that Ms. Pace had consented to the check of the house.

Appellant testified he tried to shut the door, because he wanted to put boxers on underneath his baggy shorts. Appellant walked to his room. He testified he did not consent to the officer’s entry into the house or into his room. He explained the door to his room has a lock, and his mother knocks when she wants to enter. He also stated his mother does not allow smoking of any type in the house. Appellant testified he had “weed right behind the picture ... on [his] entertainment center”; he takes the marijuana pipes outside to smoke. Appellant testified the officer was lying when he said appellant was running to his room.

WARRANTLESS SEARCH OF A RESIDENCE

Appellant argues Officer Clack did not have consent to enter the house, or probable cause to enter and search his bedroom. The burden is on the State to prove the legality of a warrantless search or arrest. See Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App.1991). Subject to certain recognized exceptions, a warrantless entry into or search of a residence is presumed to be unreasonable. See Johnson v. State, 226 S.W.3d 439, 443 (Tex.Crim.App.2007). The United States Supreme Court stated in Payton v. New York that “[t]he Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home....” 445 U.S. 573, 589, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). “In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” 445 U.S. at 590, 100 S.Ct. 1371.

Probable Cause

Ordinarily an officer must have probable cause to enter the home without a warrant, and exigent circumstances must exist that justify an immediate need to enter. See Parker v. State, 206 S.W.3d 593, 597 (Tex.Crim.App.2006). “ ‘Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found.’ ” Id. (quoting Estrada v. State, 154 S.W.3d 604, 609 (Tex.Crim.App.2005)). To determine the existence of exigent circumstances, a court considers the degree of urgency and the amount of time necessary to obtain a warrant; (2) the reasonableness of the belief that contraband was subject to destruction or removal; (3) the possibility of danger to the police officers securing the site pending the application for a warrant; (4) the suspect’s awareness of police presence or surveillance; and (5) the ready destruction of the contraband. See McNairy v. State, 835 S.W.2d 101, 107 (Tex.Crim.App.1991).

Officer Clack came to the residence after the dispatcher informed him of a tip that someone was smoking marijuana in the home in the presence of a child. There is no evidence regarding the source of the information given to the dispatcher and communicated to Officer Clack. The anonymous tip gave no indication of when the observation had been made, or whether the informant was present in the home at the time of the alleged occurrence. Pri- or to the officer’s entry, there was no corroboration of the tip; and the officer did not testify to any odor of marijuana emanating from the residence while he was standing at the door. Although police had responded to calls regarding the residence before, no drugs had been found there. The officer received no information about any weapons in the home. Although a tip coupled with observations by police may ultimately present probable cause, “[a]n anonymous tip standing alone will rarely supply police with reasonable suspicion, much less probable cause.” Turner v. State, 261 S.W.3d 129, 134 (Tex.App.-San Antonio 2008, no pet.) (citing Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000)).

We conclude the totality of the circumstances in this case did not give the officer probable cause to enter the residence. Officer Clack knew about the residence and its occupants. The police had responded to harassment and noise calls there in the past. Other than the allegation from an unidentified source of drug use in front of children in the home, there was no specific information regarding appellant’s current possession of drugs. See State v. Hoffman, 293 S.W.3d 633, 636 (Tex.App.-San Antonio 2009, pet. ref'd) (citing Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979)); see also United States v. Scroggins, 599 F.3d 433, 444 (5th Cir.2010) (“[T]he government cites no authority to support the proposition that police may stop and frisk an individual in his own home based on the same indications of criminality that would allow the detention elsewhere. The Terry doctrine was developed to determine when police could ‘detain individuals on the street.’”) (quoting United States v. Michelletti, 13 F.3d 838, 840 (5th Cir.1994)). Moreover, after the officer talked with Ms. Pace by telephone, he knew that the child was with her in her vehicle and not at the residence. Appellant’s retreat into the residence was legally insufficient to establish probable cause that the instrumentality of a crime or evidence of a crime would be found in the residence. See Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). “At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.” Id.

Consent

One exception to the warrant requirement for entry into a residence is a voluntary consent to search. Gutierrez v. State, 221 S.W.3d 680, 686 (Tex.Crim.App. 2007). So long as consent is voluntarily given and not the result of express or implied coercion or duress, a consent to search satisfies the Fourth Amendment. See Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The State may show that “permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

The Court of Criminal Appeals recently held that “[a] third party can consent to a search to the detriment of another’s privacy interest if the third party has actual authority over the place or thing to be searched.” Hubert v. State, 312 S.W.3d 554, 560 (Tex.Crim.App.2010) (not yet released for publication). Pursuant to an arrest warrant, the defendant in Hubert was arrested on the porch of the home he shared with his grandfather. Id. at 556-57. Police placed the defendant in the squad car and then, with the grandfather’s consent, searched the entire house, including defendant’s bedroom. Id. The Court stated, “The third party may, in his own right, give valid consent when he and the absent, non-consenting person share common authority over the premises or property.” Id. at 560.

No mention is made in Hubert of a present, non-consenting defendant. See id. Generally, voluntary consent given by a third party is not considered valid as to the defendant if the defendant is present and expressly refuses to consent. Georgia v. Randolph, 547 U.S. 103, 106, 114, 120, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006).

In Georgia v. Randolph, the Supreme Court held “that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” 547 U.S. at 120, 126 S.Ct. 1515 (footnote omitted). The Court distinguished other circumstances where “the people living together fall within some recognized hierarchy, like a household of parent and child[.]” Id. at 114, 126 S.Ct. 1515. Furthermore, when the police are “lawfully in the premises, there is no question that they could seize any evidence in plain view[.]” Id. at 118, 126 S.Ct. 1515 (citing Texas v. Brown, 460 U.S. 730, 737-39, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)). Citing Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the Court also noted that exigent circumstances, including “protecting the safety of the police officers,” might justify a warrantless search. Randolph, 547 U.S. at 117 n. 6, 126 S.Ct. 1515.

In this case, appellant was present in the residence and had authority over his room. He told the officer the house was not his, and the officer could not search it. The “hierarchy” that appellant explained to Clack was understood by the officer from his past experience with the family. The officer called Ms. Pace. When the officer told appellant that Ms. Pace consented to the entry and search, appellant attempted to slam the door shut. At that point, both the officer and appellant knew that Clack had Ms. Pace’s authorization to enter the house. With Ms. Pace’s consent, the officer could legally enter the house to conduct a limited welfare check.

Leesa Pace testified, however, that appellant’s bedroom door had a lock on it, that she normally knocked before entering, and that her consent to search did not extend to appellant’s bedroom. Appellant was present; he is an adult, not a child, and under Georgia v. Randolph, Leesa Pace’s consent to conduct a limited welfare check would be insufficient without more to validate the search of appellant’s room over his express refusal to consent.

OfficeR Safety

We conclude this case turns on the reasonableness of Officer Clack’s check for his own safety. See id. (Protecting the safety of police officer might justify warrantless search.). Concern for officer safety may justify a cursory inspection when the following elements are met:

First, the police must have entered legally and for a legitimate law enforcement purpose. Second, the officers must have a reasonable, articulable suspicion that the area to be swept contains a person posing a danger to those on the scene. Third, the protective sweep must be limited to a cursory inspection of only those spaces where a person may hide; it is not a full search of the premises. Finally, officers must conclude the sweep once they have dispelled their reasonable suspicion of danger, and they may not continue the sweep after they are no longer justified in remaining on the premises.

United States v. Mata, 517 F.3d 279, 286 (5th Cir.2008) (footnotes omitted).

The Court of Criminal Appeals held in Worthey v. State, 805 S.W.2d 435, 439 (Tex.Crim.App.1991) that an officer’s self-protective search for weapons inside a defendant’s purse was reasonable. While officers were searching a residence pursuant to a search warrant, a woman, who was not named in the warrant, approached the premises. Id. at 437. She walked to the front porch of the premises, and officers told her to “keep [her] hands where they were.” Id. She then “clutched the purse and turned to her side so that the purse and her right hand were away from the officer.” Id. Because the officer thought she might have a weapon inside the purse, he removed the bag and conducted a pat down of the purse. Unable to tell if the purse contained a weapon, he then searched the purse’s interior for a weapon. The purse contained contraband. The Court held that “the officer need only have a reasonable belief, not probable cause, to conduct a self-protective search.” Id.

Similarly, in Michigan v. Long, the United States Supreme Court considered the validity of a “stop and frisk,” as applied to the passenger compartment of a vehicle, when the officers had neither probable cause nor a warrant. Michigan v. Long, 463 U.S. 1032, 1035-36, 1049-50, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). The Court explained that “ ‘[the] issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ ” Long, 463 U.S. at 1050, 103 S.Ct. 3469 (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The Court held that the protective search of the vehicle’s passenger compartment, during a lawful investigatory stop, was reasonable. See Long, 463 U.S. at 1035, 103 S.Ct. 3469. The ‘“touchstone of our analysis ... is always ‘the reasonableness in all circumstances of the particular governmental intrusion of a citizen’s personal security.’ ” Long, 463 U.S. at 1051, 103 S.Ct. 3469 (quoting Pa. v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), and Terry, 392 U.S. at 19, 88 S.Ct. 1868).

The perspective of a reasonable officer on the scene is a consideration in the analysis of the reasonableness of the governmental intrusion. Rhodes v. State, 913 S.W.2d 242, 249 (Tex.App.-Fort Worth 1995), aff'd, 945 S.W.2d 115 (Tex.Crim.App.1997). The search here occurred in the home — where, as the Supreme Court has said, “the Fourth Amendment has drawn a firm line” — rather than on a public street or in a vehicle. See Payton, 445 U.S. at 590, 100 S.Ct. 1371. Officer Clack had the express consent of Leesa Pace to conduct a limited welfare check of a portion of the house. While her consent did not by itself validate the search of defendant’s room over his express refusal to consent, the officer could lawfully enter the house for the purpose of conducting the limited-scope search to which Ms. Pace had agreed. After the officer received consent to perform a welfare check, the quickly evolving facts indicated to the officer that appellant presented a potential danger. Officer Clack testified to his concerns. See Watson v. State, 861 S.W.2d 410, 416 (Tex.App.-Beaumont 1993, pet. ref'd) (stating the “officers were fully justified in entering the room and securing the female and the items located in the bathroom for their own personal safety”). Appellant’s actions caused Clack to conduct a cursory check for his own safety. See generally United States v. Maldonado, 472 F.3d 388, 394-95 (5th Cir.2006); United States v. Newman, 472 F.3d 233, 237-38 (5th Cir.2006); United States v. Jones, 239 F.3d 716, 718, 721-22 (5th Cir.2001).

We are to give almost total deference to a trial court’s determination of historical facts. Valtierra, 310 S.W.3d at 447. The trial judge is the sole trier of fact, and judge of the witnesses’ credibility and of the weight to be given their testimony. Id. While the trial judge on this record could have found otherwise, the trial judge was not required to reject as unreasonable the officer’s testimony of his concerns for his safety. In circumstances where reasonable minds may differ, a trial court may credit the judgment of an experienced law enforcement officer about the risks of a particular situation. See Cardenas v. State, 115 S.W.3d 54, 61 (Tex.App.San Antonio 2003, no pet.) (citing United States v. Blount, 123 F.3d 831, 838 (5th Cir.1997)); see also Johnson v. State, 171 S.W.3d 643, 649-50 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd) (Officers make split-second decisions in tense and uncertain circumstances.). The trial judge may believe or disbelieve all or part of a witness’s testimony, because the trial judge “has the opportunity to observe the witness’s demeanor and appearance.” Valtierra, 310 S.W.3d at 447.

Conclusion

A reasonable, articulable suspicion of danger may justify a limited, cursory inspection to dispel the suspicion. See United States v. Scroggins. 599 F.3d at 444-45. The trial court’s finding that the officer entered the bedroom to ensure his safety is supported by testimony in the record; the officer had a right to be there. Having followed appellant for the purposes of dispelling the suspicion of danger, the officer observed the evidence in plain view. See Randolph, 547 U.S. at 118, 126 S.Ct. 1515; Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App.2000) (citing Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)) (Under the “plain view” doctrine, law enforcement must have a right to be where they are, and it must “be immediately apparent that the item seized constitutes evidence, that is, there is probable cause to associate the item with criminal activity.”). The trial court did not abuse its discretion in denying the motion to suppress.

Appellant’s issues are overruled. The judgment is affirmed.

AFFIRMED.