source: Caselaw Access Project

author: Justice WAINWRIGHT Justice HECHT,

license: Public Domain

text:
    In re OLSHAN FOUNDATION REPAIR COMPANY, LLC and Olshan Foundation Repair Company of Dallas, Ltd., Relators.
    Nos. 09-0432, 09-0433, 09-0474, 09-0703.
    Supreme Court of Texas.
    Argued March 23, 2010.
    Decided Dec. 3, 2010.

      Stephan B. Rogers, Rogers & Moore, Boerne, Duncan Roderick MacRae II, Henslee Schwartz, LLP, Austin, Mark C. Roberts, Henslee Schwartz, LLP, Dallas, Jeffrey D. Janota, Henslee Schwartz, LLP, Austin, for Olshan Foundation Repair Company, LLC.
    Robert W. Loree, Edwin Todd Lipscomb, Loree, Hernandez & Lipscomb, PLLC, San Antonio, Steven W. Thornton, McCorkle Westerburg & Thornton, P.C., David M. Walsh IV, Chamblee & Ryan, P.C., Dallas, for Real Parties in Interest Kenneth Kilpatrick in No. 09-0432, Charley Tisdale in No. 09-0433, Craig Waggoner in No. 09-0474.
    Robert W. Loree, Edwin Todd Lipscomb, Christopher Dean Below, Loree, Hernandez & Lipscomb, PLLC, San Antonio, Steven W. Thornton, McCorkle Wes-terburg & Thornton, P.C., David M. Walsh IV, Chamblee <& Ryan, P.C., Dallas, for Real Party in Interest Robert Tingdale in No. 09-0703.
   Justice WAINWRIGHT

delivered the opinion of the Court.

Olshan Foundation Repair Company filed these petitions for writs of mandamus in four different cases in which three separate trial courts denied Olsharis pleas in abatement, refusing to compel arbitration of consumer claims against it. Three different courts of appeals also declined to order the disputes to arbitration. We consolidated these cases for argument and now issue a consolidated opinion. Because the Texas General Arbitration Act (TAA), and not the Federal Arbitration Act (FAA), governs the arbitration dispute in one of the cases (Waggoner, No. 09-0474), we deny Olshan mandamus relief in that case. We conclude that for the other three cases, the trial courts erred in holding that the TAA governs the arbitrations, there is no evidence that the arbitration agreements were unconscionable as a matter of law, and all other disputed issues are questions for the arbitrator. Because the trial court erred by denying Olsharis pleas in abatement in the arbitrations governed by the FAA, we conditionally grant mandamus relief in those three actions.

I. Factual and Procedural Background

Olshan is a national company that repairs residential home foundations. In 1998, Craig and Joy Waggoner contracted with Olshan to repair their home’s foundation. The Waggoners subsequently discovered new damage to the foundation and hired an engineer, Peter De la Mora, to investigate the problems. In a 2007 report, De la Mora concluded that Olshan had not properly repaired the home. The Waggoners filed suit against Olshan for breach of contract, breach of warranty, negligence, violations of the Texas Deceptive Trade Practices Act, and violations of the Texas Home Solicitation Act.

In three other cases, similar circumstances unfolded. In 2002, Olshan contracted with Vickie and Kenneth Kilpa-trick, who filed suit against Olshan in 2007. The Kilpatricks’ case was consolidated at the appellate court level with claims brought by Charley and Gladys Tisdale, again with nearly identical facts. In June 2007, Robert and Marta Tingdale, who initially contracted with Olshan in 2004, filed another similar case. All plaintiffs are represented by the same counsel, and each case includes a report from De la Mora opining that Olshan had not properly repaired each home.

The four repair contracts were in writing, and each contained arbitration clauses. The arbitration clauses in Kilpatrick (No. 09-0432), Tisdale (No. 09-0433), and Ting-dale (No. 09-0703) provide:

Notwithstanding, any provision in this agreement to the contrary, any dispute, controversy, or lawsuit between any of the parties to this agreement about any matter arising out of this agreement, shall be resolved by mandatory and binding arbitration administered by the American Arbitration Association (“AAA”) pursuant to the arbitration laws in your state and in accordance with this arbitration agreement and the commercial arbitration rules of the AAA....

(emphasis added). The arbitration clause in the Waggoner (No. 09-0474) agreement is identical except for the language in bold, which states “pursuant to the Texas General Arbitration Act.” (emphasis added). None of the agreements addressed in this opinion was signed by the consumers’ attorney or exceeded $50,000 in consideration.

Olshan filed a plea in abatement in each case and sought to compel arbitration under the Federal Arbitration Act (FAA). The homeowners responded to the pleas, arguing that: (1) the TAA applies to the agreements to the exclusion of the FAA, rendering the arbitration agreements unenforceable because the agreements were not signed by the homeowners’ attorney; and (2) arbitration with the AAA is substantively unconscionable because of the expense required and because the contract itself was undisputably unenforceable under the Texas Home Solicitation Act.

The trial court denied Olshan’s plea in the Waggoners’ action. It held that the TAA applies to the agreement, and thus the arbitration agreement was unenforceable pursuant to Chapter 171 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code § 171.002(a)(2) (requiring arbitration agreements in service contracts for less than $50,000 be signed by all parties and their attorneys). The trial court alternatively held that the prohibitive cost of arbitration rendered the agreement to arbitrate unconscionable. Olshan petitioned for mandamus relief with the court of appeals, which was denied. The court of appeals held the TAA was not preempted by the FAA, and section 171.002(a)(2) of the TAA rendered the agreement unenforceable. It denied Ol-shan’s writ of mandamus without reaching the other issues. In the remaining three actions, the trial courts denied Olshan’s pleas in abatement and the courts of appeals denied Olshan’s petitions for writs of mandamus.

II. Standard for Mandamus

At the time these petitions were filed, there was no method under Texas procedure for parties to file interlocutory appeals of a trial court’s refusal to compel arbitration under the FAA. Olshan sought relief through petitions for writs of mandamus. See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992). Mandamus will not issue unless: (1) the trial judge has committed a clear abuse of discretion; and (2) there is no adequate remedy on appeal. In re Odyssey Health care, Inc., 310 S.W.3d 419, 422 (Tex.2010) (per curiam) (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004)). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable it amounts to a clear and prejudicial error of law or it clearly fails to correctly analyze or apply the law. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (citations omitted). The second requirement for mandamus relief, that the relator has no adequate remedy by appeal, “has no comprehensive definition.” See In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex.2005) (citing Prudential, 148 S.W.3d at 136). However, we have determined that relators have no adequate remedy by appeal when a trial judge erroneously refuses to compel arbitration under the FAA. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex.2001).

This Court must decide whether the trial courts abused their discretion by not compelling arbitration pursuant to the FAA, as requested in Olsharis pleas in abatement. The trial courts abuse their discretion by refusing to compel arbitration if the FAA preempts the TAA and the arbitration agreements are not unconscionable. However, the trial courts did not err by denying Olshan’s pleas in abatement if the TAA applies to the agreements or the agreements are unconscionable.

III. Federal Preemption

A. The FAA and Choice of Law

The TAA renders arbitration agreements unenforceable if the agreements containing the arbitration clauses are agreements for services “in which the total consideration to be furnished by the individual is not more than $50,000” and the agreements are not in writing, signed by each party, and each party’s attorney. Tex. Civ. Prac. & Rem.Code § 171.002(a)(2). The homeowners contend that the arbitration agreements are governed by the TAA and are unenforceable for failure to meet the two identified TAA requirements. 01-shan argues that the FAA applies to the agreements and preempts the TAA’s exemption from coverage under section 171.002(a)(2), making the arbitration clauses enforceable. See In re Nexion Health at Humble, Inc., 173 S.W.3d 67, 69 (Tex.2005) (per curiam) (addressing a similar exemption under the TAA for personal injury cases).

Section 2 of the FAA preempts state law that would otherwise render arbitration agreements unenforceable in a contract involving interstate commerce. 9 U.S.C. § 2; Southland Corp. v. Keating, 465 U.S. 1, 10-11, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984). “The Act was designed to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate, and place such agreements upon the same footing as other contracts.” Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 474, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) (internal quotations omitted). We have recognized that the FAA preempts parts of the TAA, including section 171.002(a)(2) of the Civil Practice and Remedies Code. See Jack B. Anglin Co., 842 S.W.2d at 271 (discussing FAA’s preemption of non-waiver provision of DTPA); Nexion, 173 S.W.3d at 69 (Tex.2005) (discussing FAA’s preemption of TAA section 171.002(a)(3)).

But the FAA does not “confer a right to compel arbitration of any dispute at any time.” Volt, 489 U.S. at 474, 109 S.Ct. 1248. The FAA policy is simply to “ensur[e] that private agreements to arbitrate are enforced according to their terms.” Id. at 479, 109 S.Ct. 1248. In Volt, the Court upheld the application of a California statute that allowed a stay of arbitration proceedings pending resolution of related litigation because the contract also contained a choice-of-law clause providing that “[t]he Contract shall be governed by the law of the place where the Project is located.” Id. at 470, 109 S.Ct. 1248. The Court reiterated that “the FAA pre-empts state laws which ‘require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.’ ” Id. at 478, 109 S.Ct. 1248 (quoting Southland Corp., 465 U.S. at 10, 104 S.Ct. 852). But the FAA does not prevent

the enforcement of agreements to arbitrate under different rules than those set forth in the Act itself.... Arbitration under the Act is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit. Just as they may limit by contract the issues which they will arbitrate, so too may they specify by contract the rules under which that arbitration will be conducted.... By permitting the courts to “rigorously enforce” such agreements according to their terms, we give effect to the contractual rights and expectations of the parties, without doing violence to the policies behind by the FAA.

Id. at 479,104 S.Ct. 852 (citations omitted).

Subsequently, in Mastrobuono v. Shearson Lehman Hutton, Inc., the Court held that the FAA preempted New York’s prohibition against arbitral awards of punitive damages despite a choice of law provision in an arbitration agreement that stated the agreement “shall be governed by the laws of the State of New York.” 514 U.S. 52, 63-64, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995). The Court first stressed that the agreement would be enforced as written, stating that “the case before us comes down to what the contract has to say about the arbitrability of petitioners’ claim for punitive damages.” Id. at 58, 115 S.Ct. 1212. Where the Court in Volt read the choice-of-law provision as definitively choosing state law over federal law, the Court in Mastrobuono read the provision differently:

The choice-of-law provision, when viewed in isolation, may reasonably be read as merely a substitute for the con-fliet-of-laws analysis that otherwise would determine what law to apply to disputes arising out of the contractual relationship.
At most, [it] introduces an ambiguity into an arbitration agreement that would otherwise allow punitive damages awards.

Id. at 59, 62, 115 S.Ct. 1212. Then, using FAA mandated rules of contract construction, the Court concluded that the provision should be read “to encompass substantive principles that New York courts would apply, but not to include special rules limiting the authority of arbitrators.” Id. at 62-64, 115 S.Ct. 1212.

Thus, courts treat arbitration agreements as other contracts in applying the legal rules to interpret them. The goal is to discern the true intentions of the parties, as the FAA’s primary purpose is to ensure private agreements to arbitrate are enforced according to their terms, no more, no less. Volt, 489 U.S. at 479, 109 S.Ct. 1248; see also Baravati v. Josephthal, Lyon & Ross, Inc., 28 F.3d 704, 709 (7th Cir.1994) (Posner, C.J.) (“[S]hort of authorizing trial by battle or ordeal or, more doubtfully, by a panel of three monkeys, ... parties are as free to specify idiosyncratic terms of arbitration as they are to specify any other terms in their contract.”).

B. This Court’s Treatment of Choice-of-Law Provisions Relating to Arbitration Agreements

This Court analyzed contractual language in the context of the relationship between an arbitration clause and a general choice-of-law provision in In re L & L Kempwood, Associates, L.P., 9 S.W.3d 125, 127-28 (Tex.1999) (per curiam). We held that an agreement containing a general choice-of-law provision stating that the entire contract will be governed by “the law of the place where the Project is located,” does not preclude application of the FAA. Id. The Court observed that the Project was located in Houston, thus the FAA was part of “the law of the place where the Project is located.” Id.; see also Capital Income Props. v. Blackmon, 843 S.W.2d 22, 23 (Tex.1992) (per curiam) (stating that “[t]he Federal [Arbitration] Act is part of the substantive law of Texas”). When the language of the provision included federal law, further language specifically excluding application of the FAA is necessary for a court to apply the TAA to the FAA’s exclusion. “The choice-of-law provision did not specifically exclude the application of federal law, and absent such an exclusion we decline to read the choice-of-law clause as having such an effect.” L & L Kempwood, 9 S.W.3d at 127-28. Rather, a general choice-of-law provision “may reasonably be read as merely a substitute for the conflict-of-laws analysis that otherwise would determine what law to apply to disputes.” Id. at 127 n. 16 (citing Mastrobuono, 514 U.S. at 59-60, 115 S.Ct. 1212). Courts apply the FAA unless language in the arbitration agreement indicates its exclusion.

C. The Law the Parties Chose

Three of the arbitration agreements state that disputes arising out of the contract “shall be resolved by mandatory and binding arbitration administered ... pursuant to the arbitration laws in your state....” Courts rarely read such general choice-of-law provisions to choose state law to the exclusion of federal law. See Mastrobuono, 514 U.S. at 59, 115 S.Ct. 1212; L & L Kempwood,, 9 S.W.3d at 127 n. 16. Further, just as the FAA is part of the substantive law of Texas, the FAA would be part of the arbitration laws in Texas. See L & L Kempwood, 9 S.W.3d at 127 n. 15 (quoting Capital Income Props., 843 S.W.2d at 23). The language of the arbitration clause designating arbitration pursuant to “the arbitrations laws in your state” includes the FAA. See id. at 127-28. Thus, the FAA applies to the three agreements that include the “arbitration laws in your state” language, and the FAA preempts the provisions of section 171.002(a)(2) of the TAA that would otherwise render the agreements unenforceable. The trial courts abused their discretion in denying Olshan’s requests to compel arbitration based on the unenforceability of the arbitration under section 171.002(a)(2) in the Kilpatrick, Tisdale and Tingdale cases.

In contrast, the Waggoner agreement states that disputes arising out of the contract “shall be resolved by mandatory and binding arbitration ... pursuant to the Texas General Arbitration Act.... ” This provision distinguishes the Waggoner agreement from the other agreements and the agreements in L & L Kempwood and Mastrobuono. This is not the same general choice-of-law provision. This provision chooses a state’s substantive law, specifically the TAA, to govern disputes under the agreement. A valid choice-of-law provision makes a conflicts-of-Iaw analysis unnecessary; this provision expresses a preference between federal and state law. Id. The FAA is part of the arbitration laws of Texas and can be applied to arbitration administered pursuant to the laws of Texas. However, the FAA is not part of the TAA, at least to the extent the two are inconsistent.

The Fifth Circuit has likewise interpreted an arbitration clause specifically invoking the TAA as designating the TAA to govern all aspects of arbitration under the agreement, to the exclusion of the FAA. Ford v. NYLCare Health Plans of the Gulf Coast, Inc., 141 F.3d 243, 246 (5th Cir.1998) (applying Texas law). The court stated the parties may “specify the law governing interpretation of the scope of the arbitration clause.” Id. at 248. The focus of the determination is on the parties’ choice. Thus, the court held that the parties intended the TAA to govern the scope of the arbitration clause. Id. at 249.

The language of the Waggoner agreement also indicates the parties’ intention that the TAA govern the scope of their arbitration agreement. The plain language clearly indicates that the parties intend their arbitration to be governed by the TAA rather than merely “the law of the state” or “Texas law.” The parties’ intention that arbitration be administered pursuant to the TAA would be thwarted if the FAA preempted the TAA’s specific provisions. Thus, an agreement specifying that arbitration occur “pursuant to the Texas General Arbitration Act” excludes the FAA’s preemption of section 171.002(a)(2) of the TAA.

Because the TAA would render the Waggoners’ arbitration agreement unenforceable, and because the FAA was not chosen by the parties, the trial court correctly denied Olshan’s plea in abatement, seeking to compel arbitration of Waggoner’s action against Olshan. However, because the parties in the Kilpatrick, Tisdale, and Tingdale contracts chose to arbitrate pursuant to the laws of Texas, which include the FAA, the FAA preempts section 171.002(a)(2) of the TAA and precludes those requirements from barring arbitration.

IV. Unconscionability

Even though the FAA governs the arbitration agreements in the Kilpatrick, Tis-dale, and Tingdale contracts, if those agreements are unconscionable, they are unenforceable. The homeowners contend that the arbitration agreements are unconscionable because “mandatory binding arbitration administered by the American Arbitration Association ... in accordance with this arbitration agreement and the commercial arbitration rules of the AAA” is prohibitively expensive, preventing their ability to vindicate their claims. Further, they contend the contracts are clearly void because Olshan violated the Home Solicitation Act, exacerbating the unconscionability of the agreement.

A. Unconscionability of Arbitration Agreements

Section 2 of the FAA states arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. A central purpose of the FAA is “to reverse the longstanding judicial hostility to arbitration agreements ... and to place arbitration agreements upon the same footing as other contracts.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (citations omitted). Such agreements are enforceable only if they meet “the requirements of the general contract law of the applicable state.” In re Poly-America, L.P., 262 S.W.3d 337, 347 (Tex.2008) (citation omitted). When determining whether an agreement to arbitrate is valid, “state law, whether of legislative or judicial origin, is applicable if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally.” Perry v. Thomas, 482 U.S. 483, 493 n. 9, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987).

Texas law renders unconscionable contracts unenforceable. Poly-America, 262 S.W.3d at 348. Texas further recognizes both substantive and procedural unconscionability. “Substantive uncon-scionability refers to the fairness of the arbitration provision itself, whereas procedural unconscionability refers to the circumstances surrounding adoption of the arbitration provision.” In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 677 (Tex.2006). Because the homeowners complain of the prohibitive cost of arbitration, their claim is grounded in substantive uncon-scionability. Generally, a contract is unconscionable if, “given the parties’ general commercial background and the commercial needs of the particular trade or case, the clause involved is so one-sided that it is unconscionable under the circumstances existing when the parties made the contract.” FirstMerit Bank, 52 S.W.3d at 757 (citing Tex. Bus. & Com.Code § 2.302 cmt. 1). “The principle is one of the prevention of oppression and unfair surprise and not of disturbance of allocation of risks because of superior bargaining power.” Tex. Bus. & Com.Code § 2.302 cmt. 1 (internal citation omitted).

The U.S. Supreme Court has held that statutory claims may be arbitrated “so long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum.” Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000) (citing Gilmer, 500 U.S. at 28, 111 S.Ct. 1647). Conversely, an arbitration agreement may render a contract unconscionable if “the existence of large arbitration costs could preclude a litigant ... from effectively vindicating [his or her] federal statutory rights in the arbitral forum.” Id.; see also Poly-America, 262 S.W.3d at 355-57; FirstMerit Bank, 52 S.W.3d at 756 (citing Green Tree, 531 U.S. at 91, 121 S.Ct. 513).

We should be wary of setting the bar for holding arbitration clauses unconscionable too low. First, arbitration is favored in both federal and Texas law, and to conclude that an arbitration agreement is unconscionable based merely on the “ ‘risk’ that [the claimant] will be saddled with prohibitive costs” would undermine the “ ‘liberal federal policy favoring arbitration agreements.’ ” Green Tree, 531 U.S. at 91, 121 S.Ct. 513 (quoting Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)); FirstMerit Bank, 52 S.W.3d at 756. Second, the theory behind unconscionability in contract law is that courts should not enforce a transaction so one-sided, with so gross a disparity in the values exchanged, that no rational contracting party would have entered the contract. Restatement (Second) of Contracts § 208 cmt. b (1981). But as we have recognized previously,

there is nothing per se unconscionable about arbitration agreements. In fact, historically, Texas law favors settling disputes by arbitration. Arbitration agreements, like the one here, offer a permissible choice to traditional litigation that does not favor either party. Moreover, assuming unequal bargaining power between [the parties] exists does not establish grounds for defeating an agreement to arbitrate under the FAA.

EZ Pawn Corp. v. Mandas, 934 S.W.2d 87, 90-91 (Tex.1996) (per curiam) (citations omitted). Furthermore, arbitration clauses in consumer contracts reduce merchants’ operating costs and produce savings passed on to the consumer in the form of lower prices. Thus, a fairly administered arbitration should not create a gross disparity in the values exchanged. Stephen J. Ware, Paying the Price of Process: Judicial Regulation of Consumer Arbitration Agreements, 2001 J. Disp. Resol. 89, 89 (2001); see generally Steven Shavell, Alternative Dispute Resolution: An Economic Analysis, 24 J. Legal Stud. 1 (1995). However, we also recognize that arbitration is intended as a lower cost, efficient alternative to litigation. See Poly-America, 262 S.W.3d at 347 (“[A]rbi-tration is intended to provide a lower-cost, expedited means to resolve disputes-”). Where these justifications are vanquished by excessive arbitration costs that deter individuals from bringing valid claims, the unconscionability doctrine may protect unfairly disadvantaged consumers. We agree, as in Green Tree, that excessive costs imposed by an arbitration agreement render a contract unconscionable if the costs prevent a litigant from effectively vindicating his or her rights in the arbitral forum. See Green Tree, 531 U.S. at 90, 121 S.Ct. 513.

B. Application of the Standard

The party opposing arbitration bears the burden to show that the costs of arbitration render it unconscionable. When “a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs.” Green Tree, 531 U.S. at 92, 121 S.Ct. 513. This Court likewise requires “some evidence that a complaining party will likely incur arbitration costs in such an amount as to deter enforcement of statutory rights in the arbi-tral forum.” Poly-America, 262 S.W.3d at 356; accord In re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex.2007); FirstMerit Bank, 52 S.W.3d at 756-57.

The Court in Green Tree did not explain how detailed the showing of prohibitive expense need be to invalidate an arbitration agreement. Green Tree, 531 U.S. at 92, 121 S.Ct. 513 (“How detailed the showing of prohibitive expense must be before the party seeking arbitration must come forward with contrary evidence is a matter we need not discuss.... ”). However, a number of federal courts of appeals, relying on Green Tree, have applied a case-by-case analysis of the effect the arbitration clause has on the particular plaintiffs ability to effectively vindicate his rights. The Fourth Circuit’s approach in Bradford v. Rockwell Semiconductor Systems, Inc. is particularly instructive. 238 F.3d 549 (4th Cir.2001). The court noted the proper analysis “evaluates whether the arbitral forum in a particular case is an adequate and accessible substitute to litigation.” Id. According to the court, that inquiry requires “a case-by-case analysis that focuses, among other things, upon the claimant’s ability to pay the arbitration fees and costs, the expected cost differential between arbitration and litigation in court, and whether that cost differential is so substantial as to deter the bringing of claims.” Id. (quotations omitted). The key factor is not where the cost to pursue the claim goes, but what the total cost to the claimant to pursue the claim is. The court “fail[ed] to see how a claimant could be deterred from pursuing his statutory rights in arbitration simply by the fact that his fees would be paid to the arbitrator where the overall cost of arbitration is otherwise equal to or less than the cost of litigation in court.” Id.

Likewise, in Honrubia Properties, Ltd. v. Gilliland, the Corpus Christi-Edinburg Court of Appeals essentially accepted Bradford’s conceptual framework. Nos. 13-07-210-CV, 13-07-249-CV, 2007 WL 2949567 at *6 (Tex.App.-Corpus Christi-Edinburg Oct. 11 2007, no pet.) (mem.op.). It considered the party’s ability to pay the arbitration fee, the actual amount of the fee in relation to the amount of the underlying claim, and the cost differential between arbitration and litigation in court. Id. (citations omitted). Applying the standard, the court held the arbitration agreement was not substantively unconscionable where evidence showed the arbitration would cost approximately $15,000 to $20,283, plus expenses and other possible fees; the claimant was seeking more than $4,000,000 in compensatory and punitive damages; and arbitration costs would range from 11 percent to 15 percent of the claimant’s gross income. Id. at *7. The claimant failed to submit any evidence pertaining to the expected cost differential between arbitration and litigation. Id.

In applying the unconscionability standard, the crucial inquiry is whether the arbitral forum in a particular case is an adequate and accessible substitute to litigation, a forum where the litigant can effectively vindicate his or her rights. With this in mind, we agree that the approach taken by the Fourth Circuit in Bradford effectively pursues this inquiry. We note all of the analyses previously discussed correctly assume that litigation allows claimants to effectively vindicate their rights, despite the expense. The desire to avoid steep litigation expense — including the costs of longer proceedings, more complicated appeals on the merits, discovery, investigations, fees, and expert witnesses — is the purpose of arbitration in the first place. See Jack B. Anglin Co., 842 S.W.2d at 272-73 (“[T]he purpose of [arbitration is] providing a rapid, inexpensive alternative to traditional litigation....”). In the absence of unusual animus between the parties or external motives, plaintiffs continue to pursue claims when the expected benefits of the lawsuit outweigh the total cost of bringing it. If the total cost of arbitration is comparable to the total cost of litigation, the arbitral forum is equally accessible. Thus, a comparison of the total costs of the two forums is the most important factor in determining whether the arbitral forum is an adequate and accessible substitute to litigation. Other factors include the actual cost of arbitration compared to the total amount of damages the claimant is seeking and the claimant’s overall ability to pay the arbitration fees and costs. These factors may also show arbitration to be an inadequate and inaccessible forum for the particular claimants to vindicate them rights. However, these considerations are less relevant if litigation costs more than arbitration.

C. Sufficiency of the Evidence

Green Tree creates a burden-shifting test in which the “party seeking] to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive ... bears the burden of showing the likelihood of incurring such costs.” Green Tree, 531 U.S. at 92, 121 S.Ct. 513. Once met, the burden shifts to “the party seeking arbitration [who] must come forward with contrary evidence.” Id.; see also Poly-America, 262 S.W.3d at 348 (“The burden of proving such a ground — such as fraud, unconscionability or voidness under public policy — falls on the party opposing the contract.”); First-Merit Bank, 52 S.W.3d at 756 (“Again, since the law favors arbitration, the burden of proving a defense to arbitration is on the party opposing arbitration.”).

Evidence of the “risk” of possible costs of arbitration is insufficient evidence of the prohibitive cost of the arbitration forum. Green Tree, 531 U.S. at 91, 121 S.Ct. 513 (“The ‘risk’ that [the plaintiff] will be saddled with prohibitive costs is too speculative to justify the invalidation of an arbitration agreement.”). Rather, “both the United States Supreme Court and this Court require specific evidence that a party will actually be charged excessive arbitration fees.” U.S. Home Corp., 236 S.W.3d at 764; see also FirstMerit Bank, 52 S.W.3d at 757 (“Because the record contains no specific evidence that the [plaintiffs] will actually be charged excessive arbitration fees, we conclude that there is legally insufficient evidence that the plaintiffs would be denied access to arbitration based on excessive costs.”). The party opposing arbitration must show the likelihood of incurring such costs in her particular case.

Thus, for evidence to be sufficient, it must show that the plaintiffs are likely to be charged excessive arbitration fees. While we do not mandate that claimants actually incur the cost of arbitration before they can show its excessiveness, parties must at least provide evidence of the likely cost of their particular arbitration, through invoices, expert testimony, reliable cost estimates, or other comparable evidence. See Poly-America, 262 S.W.3d at 354-55 (concluding that the plaintiffs “own affidavit and that of an expert witness providing detailed estimates of the likely cost of arbitration in [the plaintiffs] case” constituted sufficient evidence); Olshan Found. Repair Co. v. Ayala, 180 S.W.3d 212, 215-16 (Tex.App.-San Antonio 2005, pet. denied) (holding invoice for party’s share of arbitration expenses sufficient). Evidence that merely speculates about the risk of possible cost is insufficient.

D. Application to the Facts

In applying this analysis to the facts at hand, we begin with the agreement itself, which states, “any matter arising out of this agreement shall be resolved by mandatory and binding arbitration administered by the American Arbitration Association ... in accordance with this arbitration agreement and the commercial arbitration rules of the AAA.” According to the commercial arbitration rules, the AAA:

applies the Supplementary Procedures for Consumer-Related Disputes to arbitration clauses in agreements between individual consumers and businesses where the business has a standardized, systematic application of arbitration clauses with customers and where the terms and conditions of the purchase of standardized, consumable goods or services are nonnegotiable or primarily non-negotiable in most or all of its terms, conditions, features, or choices.

AAA Commercial Arbitration Rule R-1 (2007, 2009). The Supplementary Procedures for 'Consumer-Related Disputes have a separate fee schedule for consumer arbitration:

Administrative Fees
Administrative fees are based on the size of the claim and counterclaim in a dispute. They are based only on the actual damages and not on any additional damages, such as attorneys’ fees or punitive damages. Portions of these fees are refundable pursuant to the Commercial Fee Schedule.
Arbitrator Fees
For cases in which no claim exceeds $75,000, arbitrators are paid based on the type of proceeding that is used. The parties make deposits as set forth below. Any unused deposits are returned at the end of the case.
Desk Arbitration or Telephone Hearing $250 for service on the case
In Person Hearing $750 per day of hearing
For cases in which a claim or counterclaim exceeds $75,000, arbitrators are compensated at the rates set forth on their panel biographies.
Fees and Deposits to be Paid by the Consumer:
If the consumer’s claim or counterclaim does not exceed $10,000, then the consumer is responsible for one-half the arbitrator’s fees up to a maximum of $125. This deposit is used to pay the arbitrator. It is refunded if not used. If the consumer’s claim or counterclaim is greater than $10,000, but does not exceed $75,000, then the consumer is responsible for one-half the arbitrator’s fees up to a maximum of $375. This deposit is used to pay the arbitrator. It is refunded if not used.
If the consumer’s claim or counterclaim exceeds $75,000, or if the consumer’s claim or counterclaim is non-monetary, then the consumer must pay an Administrative Fee in accordance with the Commercial Fee Schedule. A portion of this fee is refundable pursuant to the Commercial Fee Schedule. The consumer must also deposit one-half of the arbitrator’s compensation. This deposit is used to pay the arbitrator. This deposit is refunded if not used. The arbitrator’s compensation rate is set forth on the panel biography provided to the parties when the arbitrator is appointed.

AAA Supplementary Procedures for Consumer-Related Disputes, Administrative Fees, Arbitrator Fees, Fees and Deposits to be Paid by the Consumer (2005, 2010). Thus, for a consumer claim up to $75,000, the most a consumer will have to pay under these rules is $375 for the arbitrator. Id.; see also Green Tree, 531 U.S. at 95, 121 S.Ct. 513 (Ginsburg, J., dissenting) (describing the AAA’s Consumer Arbitration Rules as a model “for fair cost and fee allocation”).

The homeowners bear the burden to show the likelihood of incurring excessive costs, yet no homeowners provided any concrete idea of the amount of their claims. It is impossible to know how much they will be charged under the AAA rules, even if the fees charged by AAA were excessive. Instead, the homeowners provided two invoices from the AAA for arbitration in, as the homeowners allege, “similar cases” to show the likelihood of excessive litigation costs. The first was a copy of the invoice from the AAA to the Ayalas who were plaintiffs in a different lawsuit against Olshan. It shows that the Ayalas’ claim against Olshan was for $200,000, and that the Ayalas’ were charged $35,900 to arbitrate that claim. The second was an invoice from the AAA to an anonymous claimant for the arbitration of a construction dispute, a similar type of case using only one arbitrator. The amount of this claim is not stated on this invoice, but based on the administrative fee and case service fee charged by the AAA, we can deduce that it was between $75,000 and $150,000. The anonymous claimants were charged $11,406 to arbitrate.

Merely showing that other claimants have incurred arbitration costs of some amount falls well short of specific evidence that these particular parties will be charged excessive fees. There is no evidence that the homeowners’ claims are similar in amount or difficulty as the claims of the Ayalas or the anonymous claimant. In fact, the Ayalas’ invoice shows that their claim was for $200,000, while none of the homeowners’ claims in this case exceeded $20,000. Moreover, there is no evidence that the homeowners have made any effort to reduce the likely charges through requests for fee waivers, pro bono arbitrators, or even simply requesting a one arbitrator panel. As the court in In re MHI Partnership, Ltd. aptly noted, “Substantive unconscionability threatens to become the exception that swallows the rule if all that must be done to avoid arbitration is to assume the most expensive possible scenario.” No. 14-07-00851-CV, 2008 WL 2262157 at *7 (Tex.App.-Houston [14th Dist.] May 29, 2008, no pet.) (mem.op.).

Even if we took these invoices as evidence of the likely arbitration charges to the homeowners, they have provided no comparison of these charges to the expected cost of litigation, the amount of their claim, or their ability to pay these costs. See Green Tree, 531 U.S. at 90 n. 6, 121 S.Ct. 513 (concluding that a party’s unsupported statement that she did not have the resources to pay the high costs of arbitration was insufficient); Bradford, 238 F.3d at 556 n. 5 (“The cost of arbitration, as far as its deterrent effect, cannot be measured in a vacuum or premised upon a claimant’s abstract contention that arbitration costs are ‘too high.’ ”). The record contains no specific evidence that the homeowners will actually be charged excessive arbitration fees, and thus there is no legally sufficient evidence that such fees prevent the homeowners from effectively pursuing their claim in the arbitral forum.

E. Unconscionability in Light of the Texas Home Solicitation Act

Finally, the homeowners argue that the arbitration is unconscionable because the parties will expend time, energy, and money needlessly going to arbitration when the arbitrator will find the contract — including the arbitration clause— void, sending the case back to court. They assert that their contract with 01-shan violated the Texas Home Solicitation Act (THSA), which would render the agreements, including the arbitration clauses, void. The alleged basis for violation of the THSA is Olshan’s failure to include in the agreements certain language regarding cancellation in at least 10-point boldfaced type, where the transactions occurred by personal solicitation outside Ol-shan’s place of business. Tex. Bus. & Com. Code §§ 601.002(a), .052, .053, .201. Further, the homeowners contend that there is no dispute over whether the contract violates the THSA, and the arbitrator will thus certainly find the contract void.

It is tempting to avoid the unnecessary costs that would accompany an allegedly unnecessary arbitration. But to do so requires the trial court to make a determination of issues relating to the contract generally, even if it seems clear that one party or the other will prevail. As the U.S. Supreme Court stated in Prima Paint Corp. v. Flood & Conklin Manufacturing Co., when the parties have contracted for arbitration of their disputes, a trial court “may consider only issues relating to the making and performance of the agreement to arbitrate.” 388 U.S. 395, 404, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967); see also Rent-A-Ctr., W., Inc. v. Jackson, — U.S. —, 130 S.Ct. 2772, 2778, 177 L.Ed.2d 403 (2010); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-46, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) (“[UJnless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance.”). There is no way to fashion a standard to determine whether arbitration is unnecessary without giving the trial court some discretion over issues relating to the making and performance of the contract generally — exactly what Prima Paint, and later Buckeye and Rentr-A-Center, sought to avoid. Allowing courts to make this determination under an un-conscionability analysis would provide an end run around the rule. While in some cases this “rule permits a court to enforce an arbitration agreement in a contract that the arbitrator later finds to be void[,] ... it is equally true that [the opposite] approach permits a court to deny effect to an arbitration provision in a contract that the court later finds to be perfectly enforceable.” Buckeye, 546 U.S. at 448-49, 126 S.Ct. 1204. This conundrum is solved with a rule that allocates such decisions to arbitration, which is consistent with the liberal policy favoring arbitration in the FAA, U.S. Supreme Court decisions, and decisions of this Court. The homeowners failed to provide legally sufficient evidence of the prohibitive cost of arbitration to prove unconscionability, and this failure cannot be remedied by allowing the trial court to determine if it believes the contract itself is void.

V. Conclusion

This Court endeavors to interpret agreements, including those to arbitrate, as they are written. When an agreement specifically states that it is to be governed by the Texas General Arbitration Act, we hold that it will be governed by the Act, which may mean that disputes arising from its terms will be excluded from arbitration. Thus, the TAA applies to the arbitration agreement between the Waggoners (No. 09-0474) and Olshan and renders it unenforceable. See Tex. Civ. Prac. & Rem.Codb § 171.002(a)(2). The trial court did not err by denying Olshan’s plea in abatement, and the court of appeals denied relief. We also deny mandamus relief in the Waggoner case.

However, where an arbitration agreement states that it is to be governed by the law of this state, that law includes the Federal Arbitration Act. Because it is proper to apply the FAA to the Kilpatrick (No. 09-0432), Tisdale (No. 09-0433), and Tingdale (No. 09-0703) agreements that use such language, the FAA preempts the provisions of section 171.002(a)(2) that would otherwise render those agreements unenforceable. And the parties opposing arbitration in those three cases did not submit legally sufficient evidence that arbitration of their claims would be unconscionable. Therefore, the trial court erred by denying Olshan’s pleas in abatement, and we conditionally grant mandamus relief in the Kilpatrick, Tisdale, and Tingdale cases and remand those cases to the trial court for further proceedings consistent with this opinion. We are confident that the trial courts will comply, and the writs will issue only if they fail to do so.

Justice HECHT filed a concurring opinion, in which Justice MEDINA joined.

Justice HECHT,

concurring, in which Justice MEDINA joined.

I join fully in the Court’s opinion and write only with this further observation.

The homeowners contend that the contracts at issue violated the Texas Home Solicitation Act because they did not contain the requisite notice of their right to cancellation and are therefore void by express provision of the Act. In response, Olshan tells us in its briefing only that it “will present its defenses ... in the arbi-tral forum”. Asked at oral argument what defenses it has to the homeowners’ contention that their contracts, including the arbitration provisions, are void and unenforceable, counsel answered that “there might be an estoppel defense” because the homeowners did not challenge the validity of the contracts until work was completed. Counsel also argued that even if the contracts are void, the arbitration provision is severable and valid, and the homeowners must still submit their complaints to arbitration. Olshan has cited no authority for either of these arguments.

The homeowners acknowledge that, as the Court notes, the validity of the contracts is a matter for the arbitrator to decide. But the homeowners argue that the invalidity of the contracts is a foregone conclusion and that “the entire process ... will be a needless waste of time, energy, and money”. I agree with the Court that even if this is true, the contracts are not unconscionable. But being led on a wild goose chase, if that is all arbitration comes to, is not without remedy.

If, as the homeowners predict, the arbitrator concludes that the contracts are indeed void, Olshan and its counsel are subject to being sanctioned by the trial court for filing a groundless motion to compel arbitration. The trial court certainly has the authority to sanction frivolous resistance to arbitration, and sanctions are not a one-way ratchet. The court’s authority to sanction a frivolous motion to compel is not displaced by the arbitrator’s authority to determine the predicate issue — that the contracts are unenforceable. If the dispute returns to the trial court, the homeowners may seek full redress for Olshan’s lark.

      . The Tingdale, Kilpatrick and Tisdale trial courts issued memorandum opinions, which are addressed by the courts of appeals, respectively, in No. 10-09-00119-CV, 2009 WL 1886648 (Tex.App.-Waco July 1, 2009, orig. proceeding); Nos. 2-08-336-CV, 2-08-342-CV, 2008 WL 4661815 (Tex.App.-Forl Worth Oct. 2, 2008, orig. proceeding).

      . The Legislature recently amended the Texas Civil Practice and Remedies Code to allow an interlocutory appeal "to the court of appeals from the judgment or interlocutory order of a district court ... under the same circumstance that an appeal from a federal district court's order or decision would be permitted by 9 U.S.C. Section 16.” Tex. Civ. Prac. & Rem Code § 51.016. However, this act is not applicable to appeals of an interlocutory order in an action pending as of September 1, 2009. Act of June 19, 2009, 81st Leg., R.S., ch. 820, § 2, 2009 Tex. Gen. Laws 2061. Because all four actions in this consolidated opinion were pending as of September 1, 2009, section 51.016 does not allow an interlocutory appeal of these causes.

      . We do not believe the choice-of-law provision to be ambiguous.

      . See Musnick v. King Motor Co. of Fort Lauderdale, 325 F.3d 1255, 1259 (11th Cir.2003) ("Since Green Tree, all but one of the other Circuits that have reconsidered this issue have applied a similar case-by-case approach.”); see also Blair v. Scott Specialty Gases, 283 F.3d 595, 609-10 (3d Cir.2002); Bradford v. Rockwell Semiconductor Sys., Inc., 238 F.3d 549, 556 (4th Cir.2001); LaPrade v. Kidder, Peabody & Co., Inc., 246 F.3d 702, 708 (D.C.Cir.2001). But see Circuit City Stores, Inc. v. Adams, 279 F.3d 889, 895 (9th Cir.2002) (holding that plaintiff employees should not "have to pay either unreasonable costs or any arbitrators' fees or expenses as a condition of access to die arbitration forum”).

      . "Total cost” refers to the total cost of pursuing a claim in either forum, notwithstanding who will be financing the claim. Some courts have noted the argument that attorneys will be unwilling to represent plaintiffs on a contingency fee basis in the arbitral forum and that contingent fee arrangements make litigation less expensive for plaintiffs than arbitration. See Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 664 (6th Cir.2003); Poly-America, 262 S.W.3d at 355. But other commentators argue that there is no reason why plaintiffs cannot secure the same financing when arbitration is mandated if both the value of their claim and the cost to pursue it remain constant. See Christopher R. Draho-zal, Arbitration Costs and Contingent Fee Contracts, 59 Vand. L.Rev. 729, 768 (2006) ("On the face of it, there is no reason to expect contingent fee contracts to treat arbitration costs differently than they treat other litigation expenses.”). We recognize arbitration is not always a lower-cost, efficient litigation alternative. Forcing consumer plaintiffs into an arbitral forum may affect their ability to pursue remedies when small claims are at issue. Flowever, this does not excuse parties opposing arbitration from providing sufficient evidence to demonstrate that excessive costs make arbitration unconscionable in their particular case.

      . "The filing fee shall be advanced by the party or parties making a claim or counterclaim, subject to final apportionment by the arbitrator in the award. The AAA may, in the event of extreme hardship on the part of any party, defer or reduce the administrative fees.” AAA Commercial Arbitration Rule R~ 49 (2007, 2009). In 2008, when Olshan sought to compel arbitration, the total initial filing fee and case service fee ranges from $2,550 for claims between $75,000-$150,000 to $8,500 for claims above $500,000. AAA Commercial Arbitration Administrative Fees, Fees (2007).

      . It is unclear whether this means that the Ayalas requested three arbitrators. That the cost of the arbitrator to the Ayalas per day of hearing was $3,350, compared to $1,250 per day in the anonymous case, leads us to believe they did.

      . The homeowners concede that the arbitrator and not a court decides a contractual defense to the contract as a whole as opposed to a contractual defense to just the arbitration provision. See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-46, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006); In re Labatt Food Serv., L.P., 279 S.W.3d 640, 647-49 (Tex.2009).

      . Olshan states in its brief and stated at argument to the contrary that it will present certain defenses to this claim. It is neither our province nor the province of the trial court to determine the merits of these defenses when the parties have contracted to arbitrate such disputes.

      . Act of May 18, 1973, 63rd Leg., R.S., ch. 246, § 1, 1973 Tex. Gen. Laws 574, codified as Tex.Rev.Civ. Stat Ann. art. 5069-13.01, amended by Act of.April 4, 1975, 64th Leg., R.S., ch. 59, § 1, 1975 Tex. Gen. Laws 124, and by Act of May 27, 1995, 74th Leg., R.S., ch. 926, § 1, 1995 Tex. Gen. Laws 4649, recodified by Act of May 24, 1997, 75th Leg., R.S., ch. 1008, § 3, 1997 Tex. Gen. Laws 3091, 3583, as Tex. Bus. & Com.Code §§ 39.001-.009, and by Act of May 15, 2007, 80th Leg., R.S., ch. 885, § 2.01, 2007 Tex. Gen. Laws 1905, 2026, as Tex. Bus. & Com.Code §§ 601.001-.205.

      . Section 601.201, Tex. Bus. & Com.Code, provides that "[a] sale or contract entered into under a consumer transaction in violation of ... Subchapter D is void.” Section 601.152, in subchapter D, states: "A merchant may not: (1) at the time the consumer signs the contract pertaining to a consumer transaction or purchases the goods, services, or real property, fail to inform the consumer orally of the right to cancel the transaction; or (2) misrepresent in any manner the consumer’s right to cancel.” The prior versions of the Act contained substantively identical provisions. Former Tex. Bus. & Com.Code. § 39.008(a)(3)-(4) & (b); Tex.Rev.Civ. Stat. Ann. art. 5069-13.03(a)(3)-(4) & (b).

      . Ante at 898 (citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967)).

      . E.g., Brief of Real Parties in Interest Kenneth and Vickie Kilpatrick at 21.

      . See William Shakespeare, Romeo and Juliet act 2, sc. 4:
      "Romeo: Switch and spurs, switch and spurs; or I'll cry a match.
      "Mercutio: Nay, if thy wits run the wild-goose chase, I have done; for thou hast more of the wild-goose in one of thy wits than, I am sure, I have in my whole five.”

      . Tex.R. Civ. P. 14; Tex. Civ. Prac. & Rem.Code §§ 9.001-.014, 10.001-006.


author: PER CURIAM.

text:
    Simone Hotaling HOAG, Appellant, v. LEGACY TEXAS BANK, Appellee.
    No. 05-10-00644-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 30, 2010.
    Rehearing Overruled Dec. 1, 2010.
    William L. Wolf, Lindsey K. Griffin, William L. Wolf, P.C., Dallas, TX, for Appellant.
    Scott Allen Shanes, Strasburger & Price, Frisco, TX, Jadd F. Masso, Stras-burger & Price, LLP, Dallas, TX, for Ap-pellee.
    Before Justices RICHTER, LANG-MIERS, and MYERS.
   OPINION ON REHEARING

PER CURIAM.

The Court has before it appellant’s motion for rehearing, filed on September 10, 2010. On the Court’s own motion, we withdraw our opinion of August 25, 2010 on our own motion and vacate our judgment of that date. The following is now the opinion of the court.

The December 2009 default judgment against appellant that is the basis for the above appeal did not dispose of all claims pending in the underlying cause, and was therefore interlocutory. See Tex.R. Civ. P. 240; Castano v. Foremost County Mut. Ins. Co., 31 S.W.3d 387, 388 (Tex.App.-San Antonio 2000, no pet.). The trial court ultimately severed the no-answer default into a separate cause, 05-10-01131-CV, thus rendering the judgment final and ap-pealable. See Castano, 31 S.W.3d at 388. On November 10, 2010, this Court issued a per curiam opinion in 05-10-01131-CV granting Texas Legacy Bank’s September 24, 2010 amended motion to vacate judgment and remand. We vacated the trial court’s judgment in that case without reference to the merits, and remanded the case to the trial court. See Simone Hotaling Hoag v. Legacy Texas Bank, No. 05-10-01131-CV, 2010 WL 4485983, at *1 (Tex.App.-Dallas Nov. 10, 2010, no pet. h.) (mem.op.).

Because we lack jurisdiction over the interlocutory order that is the subject of this appeal, we DISMISS this appeal for lack of jurisdiction. See Tex.R.App. P. 42.3(a).


author: HOLLIS HORTON, Justice.

text:
    Jamaal Clarence STATEN, Appellant, v. The STATE of Texas, Appellee.
    No. 09-09-00490-CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Aug. 13, 2010.
    Decided Dec. 15, 2010.

      David W. Barlow, Beaumont, for Appellant.
    Tom Maness, Dist. Atty., Ann Manes, Asst. Dist. Atty., Beaumont, for appellee.
    Before McKEITHEN, C.J., KREGER and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

Jamaal Clarence Staten pled “no contest” to possession of marijuana in trial cause number 99797. The trial court found the evidence sufficient to find Staten guilty, but deferred further proceedings, placed Staten on community supervision for two years, and assessed a fine of $500. The State subsequently filed a motion to revoke Staten’s unadjudicated community supervision for violating the conditions of his community supervision. These conditions prohibited Staten from committing other offenses. The State’s motion to revoke alleges that after the court placed Staten on community supervision, he committed the offense of aggravated assault.

After finding that Staten violated a condition of his community supervision, the trial court found Staten guilty of possessing marijuana and assessed a two-year sentence. The trial court then proceeded to pronounce Staten’s sentence in absentia. Because Staten was not present when the trial court pronounced his sentence, we abated Staten’s appeal and remanded the case to the trial court to allow the trial court to pronounce sentence in Staten’s presence. See Staten v. State, No. 09-09-00490-CR, 2010 WL 2696153, at *2, 2010 Tex.App. LEXIS 5344, at *6 (Tex.App.Beaumont July 7, 2010) (mem. op.). After the trial court did so, we reinstated the appeal, and we then notified the parties that each could file additional briefs.

Neither party submitted additional briefs; thus, we address only those issues raised in Staten’s original brief. In two issues, Staten contends (1) the trial court violated his constitutional and statutory rights to due process and fundamental fairness in revoking his community supervision, and (2) the evidence was insufficient to support the trial court’s decision to revoke his community supervision. We affirm the trial court’s judgment.

Background

After the State indicted Staten for aggravated assault, the State filed a motion in Staten’s possession case to revoke his placement on unadjudicated community supervision. The State alleged that Staten had violated a term of his community supervision by committing aggravated assault. The trial court set Staten’s revocation hearing on the same day that it was to hear the aggravated assault case. Staten was represented by the same attorney in both matters.

Staten’s trial for the aggravated assault offense began on October 14, 2009. Although Staten was given the opportunity to be present during the trial on the charge of aggravated assault, he refused. Staten also refused to be present when the proceedings continued on the following day. The jury returned a verdict finding Staten guilty of aggravated assault. After pronouncing Staten’s sentence, the trial court told the jury that its duties were concluded. The trial court then proceeded, in Staten’s absence, to conduct the revocation hearing in trial cause number 99797. Based on Staten’s conviction for aggravated assault, the trial court found that Staten violated a condition of the trial court’s community supervision order and then revoked Staten’s community supervision. The trial court proceeded to find Staten guilty for possessing marijuana, and it then assessed a two year sentence on the possession of marijuana case. Because the trial court sentenced Staten in absentia, we abated Staten’s appeal in the possession case and remanded the case to the trial court to allow the trial court to sentence Staten in person. See Staten, No. 09-09-00490-CR, 2010 WL 2696153, at *2, 2010 Tex.App. LEXIS 5344, at *6. After the trial court pronounced Staten’s sentence in his presence, we reinstated Staten’s appeal.

Standard of Review and Applicable Law

We review a trial court’s order revoking a defendant’s placement on cona-munity supervision for abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App.2006). The State’s burden of proof in a revocation proceeding is by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 874 (Tex.Crim.App.1993) (citing Cardona v. State, 665 S.W.2d 492, 493-494 (Tex.Crim.App.1984)). The State satisfies its burden when the greater weight of credible evidence before the trial court creates a reasonable belief demonstrating it is more probable than not that the defendant has violated a condition of his community supervision. Rickels, 202 S.W.3d at 763-64; Joseph v. State, 3 S.W.3d 627, 640 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

While a defendant at a revocation proceeding need not be afforded the full range of constitutional and statutory protections that are available in the trial of a criminal case, a person on community supervision is entitled to certain due process protections. Gagnon v. Scarpelli 411 U.S. 778, 781-82, 93 S.Ct. 1756, 1759-760, 36 L.Ed.2d 656 (1973); Bradley v. State, 564 S.W.2d 727, 729-30 (Tex.Crim.App.1978); Moore v. State, 11 S.W.3d 495, 499 (Tex.App.-Houston [14th Dist.] 2000, no pet.). In Scarpelli, the United States Supreme Court recognized that due process protections extend to state revocation proceedings because the revocation deprives an individual of a conditional liberty. 411 U.S. at 781-82, 93 S.Ct. 1756. Due process, in connection with community supervision revocation proceedings, entitles a defendant to (1) the written notice of the claimed violations of the terms of the community supervision order; (2) the disclosure of the evidence against him; (3) the opportunity to be heard in person and to present witnesses and documentary evidence; (4) a neutral and detached hearing body; (5) the opportunity to cross-examine adverse witnesses, “unless the hearing body specifically finds good cause for not allowing confrontation[;]” and (6) a written statement by the fact-finder as to the evidence relied on and the reasons for revoking community supervision. See Black v. Romano, 471 U.S. 606, 611-12, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985); Scarpelli, 411 U.S. at 786, 93 S.Ct. 1756. The defendant who has been placed on community supervision is also protected by the due course of law provisions of the Texas Constitution. Tex. Const. art. I, § 19; Rogers v. State, 640 S.W.2d 248, 252 (Tex.Crim.App.1982).

In criminal proceedings, a defendant can waive his constitutionally guaranteed confrontation right by voluntarily absenting himself from the proceedings. See Tex. Code Crim. Proc. Ann. art. 33.03 (West 2006); Miller v. State, 692 S.W.2d 88, 90 (Tex.Crim.App.1985); Wortham v. State, 750 S.W.2d 326, 327 (Tex.App.-Beaumont 1988, no pet.); see also Taylor v. U.S., 414 U.S. 17, 20, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973) (per curiam). Community supervision revocation, however, is not a stage of a criminal prosecution: it is an administrative hearing. Smart v. State, 153 S.W.3d 118, 120 (Tex.App.-Beaumont 2004, pet. denied), cert. denied, 546 U.S. 1016, 126 S.Ct. 663, 163 L.Ed.2d 527 (2005). In a community-supervision revocation proceeding, a defendant’s right to be present and to confront witnesses testifying against him is protected by the due process clauses of the Texas and United States Constitutions. U.S. Const. amend. XIV; Tex. Const, art. I, § 19.

With respect to notice in community-supervision revocation proceeding cases, due process requires the State to give the defendant written notice informing the defendant of the terms of the community supervision order that he is alleged to have breached. Caddell v. State, 605 S.W.2d 275, 277 (Tex.Crim.App.1980); Pierce v. State, 113 S.W.3d 431, 435-36 (Tex.App.-Texarkana 2003, pet. ref'd); Moore, 11 S.W.3d at 498-99. The allegations contained in a motion filed by the State to revoke the defendant’s placement on community supervision operate to limit the trial court’s authority because the trial court is required to revoke on the grounds which are alleged in the motion. Moore, 11 S.W.3d at 499. Nonetheless, a motion to revoke community supervision is not required to meet the particulaiities of an indictment, information, or complaint because the motion is held to a less rigorous standard. See Champion v. State, 590 S.W.2d 495, 497 (Tex.Crim.App.1979); Pierce, 113 S.W.3d at 436; Moore, 11 S.W.3d at 499. The State’s motion to revoke need only fully and clearly set forth the basis on which the State seeks revocation so that the defendant and his counsel have notice. See Leyva v. State, 552 S.W.2d 158, 162 (Tex.Crim.App.1977).

With respect to evidence introduced in a revocation proceeding, “[w]hen the same trial court presides over both the revocation hearing and the trial of the offense that is the basis for revocation, the trial court can take judicial notice of the evidence introduced in that prior proceeding.” Akbar v. State, 190 S.W.3d 119, 123 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (citing Barrientez v. State, 500 S.W.2d 474, 475 (Tex.Crim.App.1973)); see also Bradley, 564 S.W.2d at 729. The trial court is the sole trier-of-faet in a revocation hearing. Akbar, 190 S.W.3d at 123; Moore, 11 S.W.3d at 498. Where the same trial court conducted both the trial of the charged offense and the revocation hearing, it can weigh the credibility of the witnesses from the prior proceeding in determining whether the State’s allegations, as stated in the motion to revoke, are time. Akbar, 190 S.W.3d at 123. Weighing evidence from a prior proceeding, when the same judge has presided over both the prior trial proceedings and the revocation hearing, is not a denial of due process. See Barrientez, 500 S.W.2d at 475; see also Bradley v. State, 608 S.W.2d 652, 656 (Tex.Crim.App.1980); Stephenson v. State, 500 S.W.2d 855, 857 (Tex.Crim.App.1973).

Analysis

The revocation hearing in Staten’s possession case and Staten’s trial for aggravated assault occurred before the same judge. Staten was represented by the same counsel during the entire course of the proceedings. Notices applicable to both cases appear in the record of Staten’s possession case. The trial court did not deny Staten the opportunity to be present or confront witnesses; rather, Staten voluntarily absented himself from the revocation hearing. We conclude that the right to be present and to confront witnesses in a community-supervision revocation proceeding can be waived. By refusing to appear at the revocation hearing, Staten waived his right to be heard in person.

With respect to its written findings, the trial court noted the following on the bottom of the motion to revoke: “10-15-09 found true after evidence in 08-04173 [Staten’s aggravated assault case] & jury guilty verdict in that case.” As reflected by the State’s motion to revoke, the State alleged that Staten committed an aggravated assault against J.R. on or about July 9, 2008. The aggravated assault against J.R., alleged to have occurred on or about July 9, 2008, is the same offense that serves as the basis of Staten’s indictment in trial cause number 08-04173. The same trial judge conducted the revocation proceeding, trial cause number 99797, and the aggravated assault case, trial cause number 08-04173. Consequently, the judge conducting Staten’s revocation hearing was authorized to consider the evidence that had been admitted during Staten’s aggravated assault trial. See Akbar, 190 S.W.3d at 123.

We conclude that the State gave Staten adequate written notice of the basis of its claim that he had violated the trial court’s community supervision order. We further conclude that the trial court provided Staten with a written finding which adequately explains the reason the court decided to revoke his placement on community supervision. We are not persuaded by Staten’s argument that the trial court did not conduct a hearing, nor that the trial court “abdicated its responsibility to a jury” by basing its decision to revoke Staten’s community supervision on the jury’s guilty verdict in Staten’s aggravated assault case. We conclude that the trial court conducted a revocation hearing, and that its decision was based on evidence that it could properly consider from a prior proceeding. We overrule Staten’s issue that argues the trial court violated Staten’s right to receive due process.

In issue two, Staten argues the evidence is insufficient to support the trial court’s decision to revoke his community supervision. However, the record before us demonstrates the same trial court conducted both the aggravated assault trial and the revocation proceeding. Because the same trial court presided over both proceedings, it was entitled to weigh the evidence from the prior proceeding in determining whether the State met its burden to prove that Staten was guilty of committing an aggravated assault. The evidence reflects that the jury found Staten guilty of aggravated assault, a conviction that we affirmed in a separate appeal. See Staten v. State, No. 09-09-00491-CR, 2010 WL 2696466 (Tex.App.-Beaumont Dec. 15, 2010, no pet. h.). Because Staten’s continued placement on community supervision was conditional on his not committing additional crimes, and there was evidence in the revocation proceeding that he committed another crime, the evidence in Staten’s revocation hearing is legally sufficient to support the trial court’s decision to revoke its order placing Staten on community supervision. We overrule Staten’s second issue. Having overruled both of Staten’s issues, we affirm the trial court’s judgment.

AFFIRMED.

      . In a separate opinion, we affirmed Staten's aggravated assault conviction. See Staten v. State, No. 09-09-00491-CR, 2010 WL 5232984 (Tex.App.-Beaumont Dec. 15, 2010, no pet. h.). The hearing on the Stale's mo-lion to revoke Staten’s community supervision occurred immediately after Staten’s aggravated assault case ended. We take judicial notice of the appellate record in cause number 09-09-00491-CR for purposes of our resolution of this appeal. See Tex.R. Evid. 201.

      . The trial court sentenced Staten in absentia in his aggravated assault case, and after he appealed, we abated that appeal, cause number 09-09-00491-CR, to allow the trial court to sentence Staten in person. See Staten v. State, No. 09-09-00491-CR, 2010 WL 2696466, at *1, 2010 Tex.App. LEXIS 5353, at *2 (Tex.App.-Beaumont July 7, 2010) (mem. op.).


text:
    Bridgett Lavell ROBERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 10-10-00065-CR.
    Court of Appeals of Texas, Waco.
    Dec. 15, 2010.
    Richard E. Wetzel, Austin, for Appellant.
    Bill R. Turner, Brazos County Dist. Atty., Bryan, for Appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   ABATEMENT ORDER

PER CURIAM.

This order is an effort by this Court, working with the trial court, under the current version of the rules of appellate procedure to ensure that the appellate record is timely filed. Tex.R.App. P. 35.3(c). This order is also a departure from previous orders of this Court and is our effort to empower the trial court and parties with a procedure to obtain a timely record by establishing a more formal and certain process for early intervention upon the identification of potentially late filed records.

As stated above, the responsibility for assuring the record is timely filed is now the responsibility of the appellate court and the trial court, jointly. Tex.R.App. P. 35.3(c). Previously, prior to the current rule, it was the responsibility of the litigants to ensure the timely filing of the record. Tex.R.App. P. 53(k), amended eff. Sept. 1, 1997. This is not to say, however, litigants are prohibited from participating in the process. We believe the attorneys representing the parties play a valuable role in assisting the Courts by appearing at any hearing ordered and (1) making a record of the reason(s) the record has not been timely filed and (2) making a record of the actual or potential prejudice to the parties when a record is filed late.

BACKGROUND

The reporter’s record in this appeal was originally due on March 30, 2010. Two reporters, Carolyn White, the official court reporter for the 272nd District Court, and Susan Rainwater, were responsible for the preparation of this record. Although White had her portion of the record ready to be printed and assembled, White informed the Court that Susan Rainwater had not completed her portion of the record. White received an extension of time to April 29, 2010 to file the record. On April 23, the Court received a notice from White explaining that, again, Susan Rainwater had not completed her portion of the reporter’s record. This time, both reporters received an extension to June 1, 2010 to file the record. No reporter’s record was filed. On June 2, 2010, the Court received a notice from White that her portion of the record was printed and bound but that she could not prepare a master index without Susan Rainwater’s portion of the record. White also informed the Court that Susan Rainwater’s mother had passed away. The Court did not receive any notice from Susan Rainwater.

On July 15, 2010, the Clerk of this Court sent a letter to Susan Rainwater asking that she contact the Court within 10 days regarding the late record. That request has been ignored. Furthermore, this is not the first time that this Court has had excessive difficulties in receiving records from Susan Rainwater. Since the July 15 letter was sent to Rainwater, the Court has received a letter from Roberson’s counsel regarding the record and a motion for the Court to compel the reporter to file the record.

Order

This appeal is ORDERED abated to the trial court, the 272nd District Court, the Honorable Travis B. Bryan, III, presiding, to hold a hearing as soon as practicable but not later than 28 days after the date of this Order to determine:

(1) why Susan Rainwater’s portion of the reporter’s record has not been filed;
(2) why there has been no response from Susan Rainwater to the Court’s correspondence; and
(3) a date certain by when Susan Rainwater’s portion of the reporter’s record can reasonably be transcribed into written form and filed in a manner that does not further delay the prosecution of this appeal or have the practical effect of depriving appellant of his right to appeal.

Counsel for the parties are ordered to assist the trial court in making its determinations through subpoena and questioning of Susan Rainwater and any other necessary witnesses. Susan Rainwater shall closely examine her professional and personal schedules and provide those schedules to the trial court in an effort to assist the trial court with a determination of a date certain that her portion of the reporter’s record will be filed. The parties’ counsel shall also make the trial court aware of any actual or potential prejudices to the parties by the lateness of this reporter’s record.

The trial court must order Susan Rainwater to file the record by the date determined. Further, the trial court must inform Susan Rainwater of the consequences of failing to file the record by the date determined and ordered. Those consequences include:

(1) abating the proceeding again to the trial court for a contempt of court hearing;
(2) imposing a lump sum monetary fine;
(3) imposing a daily fine for each day the record is late beyond the date previously determined by the trial court; and
(4) confinement in jail until the record is completed.

The trial court shall require the hearing to be transcribed. To the extent necessary or pertinent to obtaining compliance with the rules regarding preparation of the reporter’s record, the trial court must: (1) prepare findings of fact and conclusions of law addressing the above issues; (2) require the preparation of a supplemental clerk’s record containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in the matter; and (3) require the preparation of a reporter’s record transcribing the evidence and arguments presented at the aforementioned hearing. Additionally, the trial court’s findings and orders must be provided to the trial court clerk within 7 days from the date of the hearing.

The trial court clerk is ORDERED to provide a supplemental clerk’s record, containing the written findings and orders of the trial court, to this Court within 14 days from the date of the hearing.

Further, the trial court’s official reporter is ORDERED to provide a record of the hearing held to this Court within 14 days from the date of the hearing.


author: CHARLES W. SEYMORE, Justice.

text:
    Juliane Bridget JONES, Appellant, v. LANDRY’S SEAFOOD INN & OYSTER BAR-GALVESTON, INC., Appellee.
    No. 14-09-00767-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 16, 2010.

      Matthew P. Nickson, Houston, for appellant.
    Robert Edward Perkins, Keith Christopher Bayko, Richard A. Sheehy, Houston, for appellee.
    Panel consists of Justices ANDERSON, FROST, and SEYMORE.
   OPINION

CHARLES W. SEYMORE, Justice.

Juliane Bridget Jones appeals a summary judgment in favor of appellee, Landry’s Seafood Inn & Oyster Bar-Galveston, Inc. (“Landry’s”), in Jones’s suit for strict products liability, negligence, breach of implied warranty, and promissory estop-pel. We reverse and remand.

Background

On January 4, 2008, Jones and her mother ate lunch at Grotto, a Houston restaurant owned by Landry’s. Jones ordered “Oysters Mimmo,” which she described in her petition as a “breaded, cooked oyster dish” and more specifically in her summary-judgment affidavit as a dish made of “processed, ground oyster meat.” Jones contends she cracked a molar on a “non-comestible, hard object” while eating this dish. The restaurant manager, Callum Gray, who was summoned to the table, inspected the object and stated it was a pearl, but Jones and her mother disagreed the object was a pearl. According to Jones, Gray then told her the restaurant would pay for repair of her tooth. Jones alleges she received dental care the next day in Houston and then subsequent treatment in Chicago, where she is a student.

Jones sued Landry’s for strict products liability, negligence, breach of implied warranty, and promissory estoppel. As damages, Jones seeks the amount of her dental expenses, pain and suffering, and mental anguish. Landry’s filed a motion for summary judgment, seeking traditional summary judgment on the ground that all of Jones’s claims are barred by statute and asserting a no-evidence ground on Jones’s promissory-estoppel claim. On August 25, 2009, the trial court signed an order granting Landry’s motion for summary judgment and ordering that Jones take nothing on her claims.

Traditional Summary Judgment

In her first issue, Jones challenges the traditional summary judgment on her claims. A party moving for traditional summary judgment must establish there is no genuine issue of material fact and 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). A defendant moving for summary judgment must conclusively negate at least one element of the plaintiffs theory of recovery or plead and conclusively establish each element of an affirmative defense. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195,197 (Tex.1995). If the defendant establishes its right to summary judgment, the burden shifts to the plaintiff to raise a genuine issue of material fact. Id. We review a summary judgment de novo. Knott, 128 S.W.3d at 215. We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in her favor. Id.

Landry’s moved for traditional summary judgment on the ground that Jones’s claims are barred under section 82.004 of the Texas Civil Practice and Remedies Code, which provides in pertinent part:

(a) In a products liability action, a manufacturer or seller shall not be liable if:
(1) the product is inherently unsafe and the product is known to be unsafe by the ordinary consumer who consumes the product with the ordinary knowledge common to the community; and
(2) the product is a common consumer product intended for personal consumption, such as:
(A) sugar, castor oil, alcohol, tobacco, and butter, as identified in Comment i to Section 402A of the Restatement (Second) of Torts; or
(B) an oyster.
(b) For purposes of this section, the term “products liability action” does not include an action based on manufacturing defect or breach of an express warranty.

Tex. Civ. Prac. & Rem.Code Ann. § 82.004 (West Supp. 2009).

In its motion, Landry’s generally asserted Jones’s claims are barred under this statute but did not provide supporting argument. In its appellate brief, Landry’s seems to advance two reasons Jones’s claims are barred under the statute: (1) the object on which she broke her tooth was a pearl, which Landry’s characterizes as “an object in an oyster”; or (2) regardless of the identity of the object, “the product that is the basis of this case is an oyster.... ”

Jones correctly notes Landry’s failed to establish as a matter of law that the object on which she broke her tooth was a pearl. Nonetheless, Jones contends that Landry’s failed to prove Jones’s claims are barred under section 82.004 regardless of the identity of the object. As Jones explained in her affidavit, the product she consumed was not “a simple ‘oyster’”; rather, the product was Oysters Mimmo — “a cooked oyster dish made of processed, ground oyster meat.” Further, Jones averred the restaurant manager informed her that the meat was processed before it arrived at the restaurant and the personnel then prepared the dish. Therefore, Jones contends (1) section 82.004 does not apply to her claims because they are based on a manufacturing defect; see id. § 82.004(b); or alternatively (2) even if section 82.004 does apply, Landry’s did not establish, much less offer any evidence, that the product at issue is commonly known to be unsafe; i.e., although arguably it is ordinary knowledge that one may become sick from eating a contaminated raw oyster or encounter a pearl in an oyster which is still in its shell, it is not ordinary knowledge that a dish made of processed, ground oyster meat will contain an inedible object, even a pearl. See id. § 82.004(a)(1). We agree with Jones’s first contention; thus, we need not address the second contention.

In her petition, Jones did not specifically use the term “manufacturing defect” to describe her claims. However, a court considers the substance, not the label, of a claim to determine its nature. See Ortiz v. Collins, 203 S.W.3d 414, 421 (Tex.App.-Houston [14th Dist.] 2006, no pet.). “A manufacturing defect exists when a finished product deviates, in its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004).

In this case, Jones complains of the manner in which Landry’s manufactured the Oysters Mimmo; i.e., the restaurant allowed an inedible object to be incorporated into a dish made of ground oyster meat — whether the object was present when the restaurant received the meat, and the restaurant personnel failed to detect and remove the object while preparing the dish, or whether the restaurant personnel inadvertently placed the object in the dish. See Stanford v. Dairy Queen Prods, of Tex., 623 S.W.2d 797, 805 (Tex.App.-Austin 1981, writ ref d n.r.e.) (recognizing restaurant employee was “literal ‘manufacturer’ ” of sandwich on which customer became ill in the sense that employee actually assembled various ingredients, processed them, and prepared sandwich from the various ingredients). Therefore, in essence, Jones alleges that the finished product differed in terms of construction and quality from the restaurant’s planned output in a manner that rendered it unreasonably dangerous.

In sum, Jones’s claims are not barred under section 82.004 because they are based on an alleged manufacturing defect. See Tex. Civ. Prac. & Rem.Code Ann. § 82.004(b); Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 434 (Tex.1997) (holding plaintiffs complaint that cigarettes produced by defendant tobacco company contained pesticide residue which caused plaintiffs illness could allege a manufacturing-defect claim; although all cigarettes potentially contain pesticide residue, it is not an ingredient tobacco company intended to incorporate into its cigarettes). Accordingly, the trial court erred by granting traditional summary judgment on Jones’s claims. We sustain her first issue.

No-Evidence SUMMARY JUDGMENT

Because the trial court erred by granting traditional summary judgment on Jones’s claims, we must also consider her second issue, challenging no-evidence summary judgment on the promissory-estoppel claim. See Knott, 128 S.W.3d at 216 (recognizing that, when trial court does not specify in its order grounds relied on in granting summary judgment, appellate court must affirm if any ground presented to the trial court and preserved for appellate review is meritorious). After adequate time for discovery, a party may move for summary judgment on the ground there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex.R. Civ. P. 166a(i); W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005). The movant must state the elements on which there is no evidence. Tex.R. Civ. P. 166a(i). Unless the respondent produces summary-judgment evidence raising a genuine issue of material fact on the challenged element, the trial court must grant the motion. Id.; Urena, 162 S.W.3d at 550.

The elements of a promissory-es-toppel claim are a promise, the promisor foreseeing that the promisee will rely on the promise, and detrimental reliance by the promisee. Simulis, LLC. v. Gen. Elec. Capital Corp., No. 14-06-00701-CV, 2008 WL 1747483, at *2 (Tex.App.-Houston [14th Dist.] Apr. 17, 2008, no. pet.) (mem. op.) (citing English v. Fischer, 660 S.W.2d 521, 524 (Tex.1983); Sandel v. ATP Oil & Gas Corp., 243 S.W.3d 749, 753 (Tex.App.Houston [14th Dist.] 2007, no pet.)). The basis for Jones’s promissory-estoppel claim is her allegation she justifiably relied on the restaurant manager’s alleged promise that Landry’s would pay her dental bills to repair the broken tooth.

In its motion, Landry’s asserted Jones has no evidence on the detrimental-reliance element of her promissory-estop-pel claim. Specifically, Landry’s contended that Jones would have obtained repair of her tooth regardless of whether Landry’s promised to pay; thus, Jones can present no evidence she incurred the dental bills in reliance on Landry’s alleged promise.

In response to the motion, Jones presented, in addition to her affidavit, a letter she wrote to an unidentified Landry’s employee eight days after the incident, requesting reimbursement for her dental bills. In the letter, Jones represented that this was her second request for reimbursement because she had already telephoned Landry’s customer-relations department, which refused to pay her dental bills, asserting the “pearl” was “naturally occurring.”

According to Jones’s affidavit and letter, the following transpired between the incident and the date of the letter: at the restaurant, the manager apologized for Jones’s injury, said Jones should immediately seek a dentist, and stated Landry’s customer-relations office would contact her to “handle the billing”; the next morning, Jones consulted a dentist in Houston, who opined that the repair entailed a crown and the “large possibility of a root canal” due to “significant trauma”; the dentist placed a temporary crown and took an impression for a permanent crown; the next day, Jones returned to her home in Chicago; and while awaiting the permanent crown, she experienced pain and inability to chew solid food, which affected her work as a music composer. When she wrote the letter, Jones was awaiting the permanent crown and planned to consult a “root canal specialist” to determine if her “nerve had died.” She enclosed the bill from the Houston dentist and said “[t]here will be a second bill from the work done in Chicago.” In her affidavit, Jones indicated she presently continued to experience soreness and inability to chew without pain due to “surgeries” but could not afford to obtain further treatment.

Relative to the issue of whether Jones relied on the manager’s promise, she stated the following in her affidavit:

Had I not held [Gray’s] assurance of payment to be the good faith word and promise of Landry’s (which I most certainly did), I would not have taken the exact same steps to get treatment, and would have curtailed the amount of treatment that I received. I most likely would not have immediately gone to see Dr. Ellen Lim, the friend of my mother’s who was the first dentist who treated me. I would have considered seeing a cheaper dentist, going to a dental school, or waiting to resolve the situation in Chicago had I known that Landry’s would not pay for my tooth. I was following [Gray’s] instructions to immediately find a dentist. I expected [Gray] to speak truthfully on behalf of his company. ... I took immediate action to find a dentist in Houston, because I was following the directions of the manager. I wanted to take care of the issue right away, in direct response to [Gray’s] statement that the company would pay for the repair of my tooth.

We conclude Jones presented a genuine issue of material fact regarding reliance on Landry’s promise to pay her dental bills by averring she would have curtailed the treatment she received by considering less expensive care or postponing treatment, if not for the promise. Jones directly indicated she incurred at least some of her dental bills — for the initial care she received in Houston the day after the incident — in reliance on Landry’s alleged promise to pay. Jones also indicated she obtained some dental care after Landry’s customer-relations department refused reimbursement because she requested reconsideration before receiving her permanent crown and the referenced “surgeries.” Nevertheless, the summary-judgment evidence also raises a fact issue on whether Jones obtained at least some of this subsequent treatment in reliance on Landry’s earlier promise, despite its intervening refusal, because it is a reasonable inference that, once Jones received a temporary crown, replacement with a permanent crown was necessary.

Landry’s contends that Jones’s aver-ments about the different treatment she might have pursued are vague. However, any response to this summary-judgment ground necessarily has somewhat of a speculative aspect because Landry’s presented an issue regarding what action Jones would have taken if a certain promise had not been made when, according to Jones, the promise was indeed made. Under the circumstances of this promissory-estoppel claim, Jones’s averment that she “would have” curtailed the treatment if not for Landry’s promise was sufficient to raise a genuine issue of material fact on the detrimental-reliance element although she presented several alternate scenarios she “likely” would have considered.

Finally, Landry’s also asserts that Jones did not deny she needed dental care and would have sought the “emergency treatment” regardless of Landry’s promise. However, the fact that Jones needed dental care does not constitute evidence she would have necessarily sought the treatment. Further, in her summary-judgment' evidence, Jones never used the term “emergency,” assuming, without deciding, this term might raise a reasonable inference that a person would have necessarily obtained immediate care, regardless of whether payment was guaranteed.

Accordingly, the trial court erred by granting no-evidence summary judgment on Jones’s promissory-estoppel claim. We sustain her second issue.

We reverse the trial court’s summary judgment on all of Jones’s claims and remand for further proceedings consistent with this opinion.

      . Jones also pleaded res ipsa loquitur, and Landry's moved for summary judgment on this “cause [] of action.’’ However, res ipsa loquitur is simply a rule of evidence by which negligence may be inferred by the jury when die circumstances surrounding the incident constitute sufficient evidence of the defendant’s negligence to support such a finding and is not a separate cause of action. Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex.1990). Therefore, we will treat the res ipsa loquitur pleading as merely a theory to support the negligence claim.

      . In an internal written report of the incident, the restaurant manager described the object as a "very small pearl in oyster” and stated, "[cjustomer bit into oyster and said that the small pearl cracked her tooth.” In Jones’s affidavit, she averred the object "did not really look like a pearl to me, and I believe it may have been a contaminant that was mixed or dropped into the oyster dish during shucking, processing, or frying.” Jones also presented an affidavit of her mother, who averred that she held the object and it "was about half the size of a cooked long grain of rice, dark brown to black, very hard and sharp ... sharp enough to feel it might cut my finger” and she told the manager it did not "look anything like a pearl, it’s sharp and it’s hard like a rock.” Landry’s did not present evidence demonstrating its manager possessed some expertise that rendered his opinion conclusive on the identity of the object. Further, although Jones averred the manager kept the object after the incident, Landry's presented no evidence that it had the object tested or examined by any sort of expert on pearls. Accordingly, the evidence merely reflects contrasting opinions by laymen, and thus raises a genuine issue of material fact, regarding the identity of the object.

      . At some points in her appellate brief, Jones suggests her "manufacturing defect” argument applies to all her claims, but, at other points, suggests it applies to only her strict-product-liability action. We liberally construe her brief as presenting the "manufacturing defect” argument relative to all her claims.

      . Jones did not specifically use the term "promissory estoppel” in her petition, but we conclude, and all parties seem to agree, her factual allegations set forth such a claim. See Ortiz, 203 S.W.3d at 421.