OPINION
Opinion by
Ford Motor Company and Gillespie Motor Company seek a writ of mandamus to compel the trial court to order the plaintiffs who were not parties to the underlying sales contract and its arbitration provision to arbitration. We conditionally grant the petition and order the trial court to compel arbitration оf the nonparties’ claims.
Factual and Procedueal Background
In 2003, when Rudy Leija and his wife Maricella DeLeon bought a used 2000 Ford Expedition from Gillespie, they signed a sales contract and accompanying arbitration provision providing that “any and all controversies or claims arising out of, or in any way relating to” the “Sales Contract or the negotiation, purchase, trade in, financing, ownership, manufacture, warranties (express or implied), repair or sale/disposition of the motor vehicle which is the subject of the ... Sales Contract, whether those claims arise from or concern contract, warranty, statutory, property or common law, will be settled solely by means of final and binding arbitration.” 2
Gillespie and Ford moved to stаy the trial court proceedings and order all the plaintiffs to arbitrate them claims. The trial court rejected Gillespie’s and Ford’s argument that Leija’s children аnd parents, even though they did not sign the agreement, should be compelled to arbitrate their claims under the theory of direct benefit estoppel and ordered only DeLeon, individually and as the representative of Leija’s estate, to arbitration. Ford and Gillespie now seek a writ of mandamus to compel the trial court to order Leija’s children and parents to arbitrate their claims as well.
PROPRIETY OF MANDAMUS RELIEF
The arbitration provision signed by Gillespie, Leija, and DeLeon states the pаrties “acknowledge and agree that the subject of this agreement involves interstate commerce.” A “contract evidencing a transaction involving cоmmerce” is governed by the Federal Arbitration Act. 9 U.S.C.A. § 2 (West 1999). An order refusing to compel arbitration under the Federal Arbitration Act is renewable by mandamus.
In re Weekley Homes, L.P.,
Who Decides Arbitrability?
Gillespie and Ford first argue that whether Leija’s children and parents should be ordered to arbitrate their claims is an issue that should be decided not by the trial court but by the arbitrator. We disagree.
“Under the FAA, absent unmistakable evidence that the parties intended the contrary, it is the courts rather than arbitrators that must decide ‘gateway matters’ such аs ... [wjhether an arbitration agreement is binding on a nonparty....”
Id.
Gillespie and Ford argue the arbitration agreement at issue here contains unmistakable evidence that the parties intended the contrary because it provides that “any contests to the validity or enforceability of this Arbitration Provision ... will be determined by arbitratiоn in accordance with the terms of this Arbitration Provision” and any dispute would be settled by “final and binding arbitration before the ... (AAA) in accordance with the rules and proсedures of the AAA.” However, none of the cases cited by Ford and Gillespie to support their argument employ language similar to the language at issue here; and, although this language might be construed as Ford and Gillespie argue, we do not believe it constitutes “unmistakable evidence” that the parties intended for an arbitrator to decide whether nonparties are bound by the arbitration agreement, particularly in light of the established Texas law placing the initial burden of proving the existence of a valid
In the absence of “unmistakable evidence” that the parties to this arbitration agreement intended that the issue of whethеr Leija’s children and parents are bound by the arbitration agreement would be decided by an arbitrator, we hold the general rule requiring the trial court to decidе “gateway” matters applies.
Direct Benefit Estoppel
Ford and Gillespie next argue that Leija’s children and parents are bound by the arbitration agreement under the theory of direсt benefit estoppel. We agree.
“ ‘[A] litigant who sues based on a contract subjects him or herself to the contract’s terms.’ ”
In re Weekley,
As noted above, the plaintiffs’ joint petition includes claims under the caption “Breach of Warranty” and alleges the defendants “by and through the sale of the Ford Expedition” “expressly and impliedly warranted to ... the Plaintiffs specifically[] that the Expedition was fit for the purposes for which it was intended”; the plaintiffs “made use” of the product and relied on the defendants’ express and implied warranties; Ford exprеssly represented that the vehicle met all federal safety standards; and the defendants’ breach of the express and implied warranties was the producing cause of the occurrence in question and the injuries to Leija. And, as noted above, the joint petition does not even attempt to distinguish the non-parties’ claims from those of DeLeon, a party to the contract. It is thus clear that Leija’s children and parents, although not parties to the sales contract, sеek to enforce express warranties, as if they were parties to the sales contract and thereby “subject! ] themselves to the contract’s terms, including thе Arbitration Addendum.”
Id.
at 756. Because Leija’s children and parents chose to pursue contractual breach of warranty claims, they must pursue all of their claims in аrbitration.
See In re Weekley,
Conclusion
Although Leija’s children and parents did not sign the sales contract and accompanying arbitration agreement, they chose
Notes
. The agreement also states that the Expedition’s manufacturer, Ford, would be subject to arbitration.