Service First Automotive LLC D/B/A Caliber Auto Care v. Christopher David Wamsley, Christopher Justin Wamsley, Estela Garcia, Alexander Trujillo, Carlos Perez Garcia, Luis Perez, Walmart, Inc., and Mavis Tire Supply, LLC D/B/A NTB Tire & Service Center

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-25-00196-CV
__________________

SERVICE FIRST AUTOMOTIVE LLC D/B/A CALIBER AUTO CARE,
Appellant

V.

CHRISTOPHER DAVID WAMSLEY, CHRISTOPHER JUSTIN
WAMSLEY, ESTELA GARCIA, ALEXANDER TRUJILLO, CARLOS
PEREZ GARCIA, LUIS PEREZ, WALMART, INC., AND MAVIS TIRE
SUPPLY, LLC D/B/A NTB TIRE & SERVICE CENTER, Appellees

__________________________________________________________________

On Appeal from the 457th District Court
Montgomery County, Texas
Trial Cause No. 24-11-18070
__________________________________________________________________

MEMORANDUM OPINION

Service First Automotive LLC d/b/a Caliber Auto Care (“Caliber”) filed a

notice of accelerated appeal from an order denying a motion to compel arbitration.

Caliber contends the trial court abused its discretion by denying Caliber’s motion to

compel arbitration despite the existence of a binding arbitration clause in an invoice

signed by one of the plaintiffs. Caliber contends the other five plaintiffs are bound

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by the same agreement because they seek to recover for services performed under

the same agreement. We affirm the trial court’s order.

Background

Christopher David Wamsley, Christopher Justin Wamsley, Estela Garcia,

Alexander Trujillo, Carlos Perez Garcia, and Luis Perez (“Plaintiffs” or

“Appellees”), sued Caliber, Mavis Tire Supply, LLC d/b/a NTB Tire & Service

Center (“NTB”), and Walmart, Inc., for personal injuries they sustained from a

vehicle rollover allegedly caused by a tire blowout. Plaintiffs’ Original Complaint

alleges that (1) on February 27, 2023, Christopher David Wamsley (“Wamsley”)

took his 2016 Toyota Sequoia to Caliber to service the vehicle for squealing brakes,

(2) Wamsley bought four tires from Walmart and they were installed on March 3,

2023, (3) Wamsley took his vehicle to Caliber for routine maintenance on March 16,

2024, and (4) he took the 2016 Toyota Sequoia to NTB on July 24, 2023, for an oil

change and tire rotation. Plaintiffs allege each time the service provider inspected

the vehicle, each failed to inform Wamsley that the Sequoia was grossly misaligned.

The accident occurred on September 14, 2023. Plaintiffs allege the vehicle’s

improper alignment caused the tires to wear out at an accelerated rate which rendered

them unsafe. Plaintiffs allege that on September 14, 2023, one of the front tires

exploded, causing the driver to lose control of the vehicle, which rolled over, injuring

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the occupants. In their petition, Plaintiffs assert claims against Caliber for negligence

and for gross negligence.

Caliber filed a Motion to Compel Arbitration and to Stay or Dismiss

Proceedings against Caliber. According to Caliber, at the time of service, Wamsley

signed an invoice which contained a mediation and binding arbitration clause, and

three additional invoices paid by Wamsley contain the same arbitration provision.1

In their response, Plaintiffs contend the arbitration clause is unenforceable

because (1) five of the plaintiffs did not sign any paperwork at Caliber, (2) Wamsley

never signed or assented to the purported arbitration agreement, (3) Wamsley signed

only a credit card authorization and Caliber hid the arbitration in a receipt provided

after completing the transaction, (4) the arbitration clause is unsigned, (5) the

arbitration clause was not negotiated and was hidden in paperwork provided at the

conclusion of the transaction, (6) the purported arbitration clause fails to conform to

Texas contract law, and (7) the arbitration clause is unconscionable.

Plaintiffs attach four invoices to their response. Caliber Auto Care Invoice

Number 207147 dated October 7, 2022, and containing thirteen pages states, “Guest

requested a full synthetic oil change. Also if the vehicle passenger rear tire can be

plugged or patched. Please check and advise.” The invoice charged for an oil change

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The motion to compel arbitration references “attached Exhibit A, Invoice
Number 334069 dates 2/27/2023 with signature[,]” but no exhibit is attached to the
motion contained in the clerk’s record.
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and included Maintenance Digital Vehicle Inspection. The second and third pages

state Terms of Service, including an agreement to pay costs for repossession, consent

to receive marketing information, and an arbitration agreement in all capital letters,

followed by the word “Authorization:” in bold font and a dated blank space for a

signature. The remaining pages include an Inspection Report with vehicle service

recommendations with photographs.

Caliber Auto Care Invoice Number 334069 dated February 27, 2023, and

containing fifteen pages, states, “Customer states that the front brakes are squealing

badly upon application. The front passenger side also seems to be making some sort

of a grinding type noise whenever driving down the road. Please inspect and advise.”

The invoice charged for rear brake and rotor/drum service and included Courtesy

Brake Inspection and Maintenance Digital Vehicle Inspection. The second and third

pages state Terms of Service, including an agreement to pay costs for repossession,

consent to receive marketing information, and an arbitration agreement in all capital

letters, followed by the word “Authorization:” and a dated blank space for a

signature. The remaining pages include an Inspection Report with vehicle service

recommendations with photographs.

Caliber Auto Care Invoice Number 352805 dated March 16, 2023, and

containing six pages, charges for an oil change and includes Term of Service but the

text of the arbitration clause is scrambled and unreadable, followed by

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“Authorization:” and a dated blank space for a signature. The remaining pages

include findings and recommendations with photographs.

Caliber Auto Care Invoice Number 404224 dated May 9, 2023, and containing

thirteen pages, indicates that the customer hears a squealing noise when turning the

truck on or driving. There is no charge for service, and the invoice indicates they

could not replicate the problem and advised the customer to return the vehicle if the

issue became more prominent. The text of the Terms of Service, including the text

of the arbitration clause, is scrambled and unreadable, followed by

“Authorization:” and a dated blank space for a signature. The remaining pages

include a garbled inspection report and recommendations with photographs.

An affidavit from Caliber representative Amanda Stanford, includes her

statement that “On or about February 27, 2023, Plaintiff visited a Caliber location

and was presented with a service invoice/receipt. This document included a printed

arbitration agreement, which is a standard part of Caliber’s customer

documentation[,]” and “The Plaintiff signed the invoice/receipt, acknowledging and

agreeing to the terms, including the provision requiring binding arbitration with the

American Arbitration Association (AAA) for any disputes arising out of or relating

to the services rendered.”

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An affidavit from Wamsley includes his statement that “I presented my

vehicle, a Toyota Sequoia, for service at said Caliber location. At no point during

the transaction did any Caliber employee or representative inform me or request my

consent to arbitration in connection with the vehicle services at Caliber[,]” and “At

the conclusion of the transaction, I was asked to pay and presented my credit card at

a credit card terminal. At no point during the payment portion of the transaction, nor

at any other time, was I made aware of any arbitration clause. I was led to believe

that my signature was required for credit card payment authorization only. Any

allegation that I consented to arbitration is false. Further, I was fraudulently induced

into signing a document including an arbitration clause because that is not what was

presented to me during payment.”

The motion was set for submission on May 2, 2025. On May 7, 2025, the trial

court denied the motion to compel arbitration.

Appeal or Mandamus

Caliber filed a notice of appeal and paid for the clerk’s record but filed a

petition for a writ of mandamus instead of an Appellant’s Brief. The Clerk of the

Court notified the parties that the brief was due June 23, 2025, but was not filed, that

the Court received a mandamus petition to be filed in Appeal Number 09-25-00196-

CV, and that the mandamus petition does not explain why an appeal is not available

under sections 51.016 or 171.098 of the Civil Practice and Remedies Code. The

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Clerk gave Caliber ten days’ notice to advise the Court whether the mandamus

petition is a conditional request for alternative relief in the event the Court

determines that it lacks appellate jurisdiction over the accelerated appeal. Caliber

did not respond to the Court’s notice.

On July 17, 2025, the Clerk of the Court notified the parties that the response

was late and asked Caliber to respond by July 28, 2025. Caliber did not respond to

the Clerk’s late notice.

On August 4, 2025, the Clerk of the Court issued a late notice for the

Appellant’s Brief, notified the parties that the appeal would be submitted without

briefs unless a brief and a motion for extension of time were filed by August 14,

2025, and warned Caliber that submission without briefs may result in dismissal for

want of prosecution.

On August 18, 2025, the Clerk of the Court notified the parties by letter that

the appeal would be submitted on September 8, 2025, and requested a response to

the mandamus petition by August 28, 2025.

Appellees filed a response to Caliber’s mandamus petition. They do not argue

that Caliber had an adequate remedy by appeal. They ask this Court to affirm the

trial court’s order.

Caliber filed a petition for a writ of mandamus when an accelerated appeal

provided an adequate remedy. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.016

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(authorizing accelerated appeal from an interlocutory order denying a motion to

compel arbitration under the Federal Arbitration Act), 171.098 (authorizing

accelerated appeal from an interlocutory order denying a motion to compel

arbitration under the Texas Arbitration Act). Caliber cites cases that pre-date the

enactment of section 51.016 in 2009. See In re McKinney, 167 S.W.3d 833, 835

(Tex. 2005) (orig. proceeding); In re FirstMerit Bank, 52 S.W.3d 749, 753 (Tex.

2001) (orig. proceeding). Caliber is not entitled to mandamus relief because it has

not shown that it lacks an adequate remedy by appeal. See In re Grand Parkway

Infrastructure, LLC, No. 09-24-00117-CV, 2024 WL 1787880, at **1-2 (Tex.

App.—Beaumont Apr. 25, 2024, orig. proceeding) (mem. op.) (denying mandamus

relief due to relator’s failure to explain why an accelerated appeal was not an

adequate available remedy).

Unlike the relator in Grand Parkway Infrastructure, Caliber invoked our

appellate jurisdiction by filing a timely notice of appeal with the trial court clerk and

by arranging for the filing of a clerk’s record that contains an appealable

interlocutory order and the notice of appeal. See Tex. R. App. P. 25.1(a), 26.1(b),

28.1(b), 34.5(a)(5), (7), 35.3(a). “Generally, a party is not entitled to relief it does

not request.” Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 392

(Tex. 2011); Betancourt v. Ohmer, No. 09-18-00121-CV, 2019 WL 237333, at *2,

n.1 (Tex. App.—Beaumont Jan. 17, 2019, no. pet.) (mem. op.). In its prayer for

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relief, Caliber asks this Court to “1. Issue a writ of mandamus directing the trial court

to vacate its May 7, 2025 Order;” and “2. Compel arbitration of all claims against

Caliber[.]” Although Caliber did not expressly request appellate relief, it did

challenge the trial court’s order denying its motion to compel arbitration.

Nothing in the procedures for interlocutory appeals and mandamus actions

prevents an appellate court from treating an accelerated appeal as a petition for writ

of mandamus. CMH Homes v. Perez, 340 S.W.3d 444, 453 (Tex. 2011). If a court’s

appellate jurisdiction is timely invoked, as it was here, nothing in the procedures for

interlocutory appeals and mandamus actions prevents an appellate court from

treating a petition for writ of mandamus as an accelerated appeal. See Tex. R. App.

P. 38.8(a)(2) (if an appellant fails to timely file a brief, the appellate court may

decline to dismiss the appeal and give further direction to the case as it considers

proper), 38.9 (briefs are intended to acquaint the court with the case and to present

argument that will enable the court to decide the case). Accordingly, we will treat

the mandamus petition as a brief for an accelerated appeal.

Existence of Agreement to Arbitrate

A party seeking to compel arbitration must establish the existence of a valid

arbitration agreement and the existence of a dispute within the scope of the

agreement. Baby Dolls Topless Saloons, Inc. v. Sotero, 642 S.W.3d 583, 585-86

(Tex. 2022) (FAA); Rachal v. Reitz, 403 S.W.3d 840, 843 (Tex. 2013) (TAA). We

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review de novo whether an arbitration agreement is enforceable. Rachal, 403 S.W.3d

at 843; In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig.

proceeding). A strong presumption in favor of arbitration “arises only after the party

seeking to compel arbitration proves that a valid arbitration agreement exists.” J.M.

Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). “A party can challenge

(1) the validity of the contract as a whole, (2) the validity of the arbitration provision

specifically, and (3) whether an agreement exists at all.” Sotero, 642 S.W.3d at 586.

A challenge to the validity of the arbitration provision specifically is for the court to

decide unless clearly and unmistakably delegated to the arbitrator. Id. The court

decides whether an agreement exists at all. Id.

“Arbitration agreements are interpreted under traditional contract principles.”

Webster, 128 S.W.3d at 227. “In construing a written contract, the primary concern

of the court is to ascertain the true intentions of the parties as expressed in the

instrument.” Id. at 229. We “examine and consider the entire writing in an effort to

harmonize and give effect to all the provisions of the contract so that none will be

rendered meaningless.” Id. “No single provision taken alone will be given

controlling effect; rather, all the provisions must be considered with reference to the

whole instrument.” Id.

The arbitration provision included within each invoice/receipt states:

DISPUTE SETTLEMENT AND ARBITRATION,
CUSTOMER AND CALIBER ACKNOWLEDGE AND AGREE
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THAT IN THE EVENT A DISPUTE OR CONTROVERSY ARISES
CONCERNING THIS AGREEMENT OR THE REPAIRS TO THE
VEHICLE, CUSTOMER & CALIBER SHALL FIRST ATTEMPT IN
GOOD FAITH TO SETTLE THE DISPUTE BY MEDIATION
ADMINISTERED BY THE AMERICAN ARBITRATION
ASSOCIATION UNDER ITS CONSUMER OR COMMERCIAL
MEDIATION PROCEDURES, AS APPLICABLE. IN THE EVENT
THAT THE MATTER IS NOT SETTLED BY MEDIATION AS
PROVIDED FOR IN THIS PARAGRAPH, CUSTOMER &
CALIBER AGREE THAT SUCH DISPUTE OR CONTROVERSY
SHALL BE RESOLVED BY BINDING ARBITRATION
ADMINISTERED BY THE AMERICAN ARBITRATION
ASSOCIATION UNDER ITS CONSUMER OR COMMERCIAL
ARBITRATION RULES, AS APPLICABLE. CUSTOMER HEREBY
ACKNOWLEDGES THAT A COPY OF SUCH RULES, A GUIDE
TO THE APPLICABLE PROCEDURES AND INFORMATION
NOTING THE NEAREST AMERICAN ARBITRATION
ASSOCIATION LOCATION IS AVAILABLE FOR CUSTOMER’S
REVIEW AT www.adr.org/aaa/faces/rules. CUSTOMER MAY ALSO
CONTACT THE AMERICAN ARBITRATION ASSOCIATION AT
212-484-4181 or 888-855-9575. JUDGMENT ON THE
ARBITRATION AWARD RENDERED BY THE ARBITRATOR
MAY BE ENTERED IN ANY COURT HAVING JURISDICTION
THEREOF. IF EITHER CUSTOMER OR CALIBER ELECT TO
RESOLVE A CLAIM BY ARBITRATION, THAT CLAIM SHALL
BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS. THERE
SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO
BE ARBITRATED ON A CLASS ACTION BASIS OR ON BASES
INVOLVING CLAIMS BROUGHT IN A PURPORTED
REPRESENTATIVE CAPACITY, WHETHER ON BEHALF OF
THE GENERAL PUBLIC, OTHER CALIBER CUSTOMERS OR
OTHER PERSONS SIMILARLY SITUATED.
NOTWITHSTANDING THE FOREGOING, CALIBER AND
CUSTOMER AGREE THAT CLAIMS ARISING UNDER THE
MAGNUSON-MOSS WARRANTY ACT (“MMWA”), SHALL BE
MEDIATED BUT SHALL NOT BE ARBITRATED. IF MEDIATION
DOES NOT RESOLVE A CLAIM UNDER THE MMWA, THE
CUSTOMER MAY PURSUE THE MMWA CLAIM, AND ONLY
THE MMWA CLAIM, IN COURT. ANY CLAIMS NOT UNDER
THE MMWA SHALL BE ARBITRATED AS SET FORTH HEREIN.
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IN THE EVENT THE CUSTOMER DOES BRING AN MMWA
CLAIM IN COURT, CUSTOMER AND CALIBER EXPRESSLY
WAIVE THEIR RIGHT TO A TRIAL BY JURY AS TO SUCH
CLAIM.

On each invoice, immediately below this paragraph appears

“Authorization:[,]” a blank for a signature, and a date that corresponds to the date

of the invoice. None of the documents bear a signature on that line. Wamsley

admitted he signed separate authorizations to use his credit card each time he paid

for services from Caliber.

Caliber argues the trial court abused its discretion by denying Caliber’s

motion to compel arbitration despite the existence of an arbitration clause in the

invoices. It argues the arbitration provision was conspicuous and displayed in capital

letters, and that Plaintiffs’ claims arise out of Caliber’s services to Wamsley’s

vehicle.

Caliber cites four cases as support for its argument that by signing credit card

authorizations and paying for Caliber’s services on three occasions in which the

receipt included a conspicuous arbitration clause, Wamsley is bound by the

arbitration clause even if he failed to read it or to sign it. In one case, a management-

level employee voluntarily participating in a stock option plan signed an agreement

requiring arbitration of any cognizable claim that may exist against the other. EZ

Pawn Corp. v. Mancias, 934 S.W.2d 87 (Tex. 1996) (orig. proceeding). He later

argued the arbitration agreement was unenforceable because he never actually read
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it and therefore did not understand its effect. Id. at 90. The Supreme Court held a

person who has an opportunity to read an arbitration agreement and signs it is

presumed to know its contents. Id.

In a second case, pharmacies that joined a network were bound by an

arbitration clause contained in a Provider Agreement even though they did not sign

that particular document, because documents the pharmacies did sign referenced the

Provider Agreement and agreed to its terms. In re AdvancePCS Health L.P., 172

S.W.3d 603, 606 (Tex. 2005) (orig. proceeding).

In a third case, buyers of a manufactured home who signed an arbitration

agreement with the retailer failed to establish that the manufacturer’s limited right

as a third-party beneficiary to refuse to arbitrate rendered the arbitration agreement

so one-sided as to be substantively unconscionable. In re Palm Harbor Homes, Inc.,

195 S.W.3d 672, 678 (Tex. 2006) (orig. proceeding).

In a fourth case, a used car buyer’s claim that the seller improperly charged

purchasers vehicle preparation fees fell within the scope of agreement to arbitrate

any controversy arising out of or relating to the Purchase Agreement that contained

the arbitration clause. Autonation USA Corp. v. Leroy, 105 S.W.3d 190, 197-98 n.2

(Tex. App.—Houston [14th Dist.] 2003, orig. proceeding). We find these cases are

inapplicable to the facts in this case.

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Rather, the threshold question we must determine as a matter of law is whether

Caliber established a valid arbitration agreement exists. Sotero, 642 S.W.3d at 586;

Webster, 128 S.W.3d at 227.

We conclude, based on the record before us, that Caliber failed to establish

that a valid arbitration agreement exists. Caliber failed to show that the credit card

authorization Wamsley signed expressly incorporated the arbitration clause. Caliber

argues Wamsley’s repeated conduct of obtaining vehicle services from Caliber after

Caliber had provided a receipt that included an arbitration clause binds Wamsley to

its terms through implied assent even though he did not separately sign the

arbitration clause. We reject this argument. Although the facts show Wamsley

authorized the use of his credit card to pay for the services Caliber provided, the

arbitration clause which appears on the printed paperwork has a line for a signature

but each one is unsigned. There is nothing in the documentation Caliber provided to

Wamsley after Wamsley authorized the credit card transactions which notifies

Wamsley that the credit card authorization incorporates the arbitration agreement,

nor does it notify Wamsley that he agreed to arbitrate any disputes. See Nationwide

Coin & Bullion Reserve, Inc., No. 01-20-00777-CV, 2022 Tex. App. LEXIS 1721,

**11-12 (Tex. App. — Houston [1st Dist.] Mar. 15, 2022, pet denied) (mem. op.)

(Nationwide also has not submitted evidence that demonstrates that Ciarlone

assented to the arbitration provision after he received the invoice. Under these facts,

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an arbitration provision on the back of an invoice, which is provided to the buyer

after the transaction is complete, is not enough to show a meeting of the minds for

contract formation and modification).

Conclusion

Caliber failed to meet its burden to establish the existence of a valid arbitration

agreement. Thus, the trial court did not abuse its discretion when it denied Caliber’s

Motion to Compel Arbitration. Accordingly, we affirm the trial court’s order.

AFFIRMED.

JAY WRIGHT
Justice
Submitted on September 8, 2025
Opinion Delivered January 8, 2026

Before Golemon, C.J., Johnson and Wright, JJ.

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