Pearland Urban Air, LLC v. Abigail Dalila Cerna A/N/F of R.W.

Reversed and Remanded and Majority and Concurring Opinions filed
February 8, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00090-CV

PEARLAND URBAN AIR, LLC, Appellant

V.

ABIGAIL DALILA CERNA A/N/F OF R.W., Appellee

On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2022-33992

CONCURRING OPINION

The majority concludes that Cerna’s Texas Arbitration Act argument is one
for the arbitrator to decide—and not the courts. I respectfully disagree. In my mind,
this is a contract formation question, which is for the courts to decide.

Under the TAA, a claim for personal injury may not be subject to an
arbitration agreement unless the arbitration agreement is signed by each party and
each party’s attorney. See Tex. Civ. Prac. & Rem. Code § 171.002(a)(3), (c). Here,
it is undisputed that the agreement was not signed by each party’s attorneys. While
it may be a valid signed agreement, it is not a valid signed arbitration agreement
under the TAA.

However, it is also undisputed that the agreement states that the Federal
Arbitration Act applies. And the FAA preempts the state law requirement of
signatures by each party’s attorneys. See ReadyOne Indus., Inc. v. Lopez, 551
S.W.3d 305, 316 (Tex. App—El Paso 2018, pet. denied) (personal injury case); In
re Olshan Foundation Repair, Co., 328 S.W.3d 883 (Tex. 2010) (consumer case).

While the majority delegates this issue to the arbitrator, I believe it is for the
courts. I would hold that the FAA preempted the signature requirement and therefore
it is not a defense to arbitration.

/s/ Tracy Christopher
Chief Justice

Panel consists of Chief Justice Christopher and Justices Wise and Jewell.

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