I think we agreed to arbitrate.

Originally published by David Coale.

Defendants moved to compel arbitration, admitting that they could not find the relevant construction contract, but stating in an affidavit that it would have used a standard form that contained an arbitration clause that would govern the matter in dispute. The trial court denied their motion; the Fifth Court reversed, noting two technical issues. First, while plaintiffs objected to various parts of the affidavit, “appellees did not obtain a
ruling on this objection. An objection that an affidavit contains hearsay is an objection to the form of the affidavit. The failure to obtain a ruling from the trial court on an objection to the form of an affidavit waives the objection.” Second, while plaintiffs provided their own affidavits “stating they ‘do not recall’ signing any documents other than documents relating to financing and ‘do not recall’ signing documents requiring arbitration” – “To have probative value, an affiant ‘must swear that the facts presented in the affidavit reflect his personal knowledge[,]’ so “[a]n affiant’s belief about the facts is legally insufficient.” Ladymon v. Lewis, No. 05-16-00776-CV (July 21, 2017) (mem. op.)

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