by Eleanor Mason, Staff Attorney for Justice Hassan, Fourteenth Court of Appeals

Lennar Homes of Tex. Land & Constr., Ltd. v. Whiteley, 625 S.W.3d 569 (Tex. App.—Houston [14th Dist.] 2021, no pet. h.) (Hassan, J.).

In Lennar Homes v. Whiteley, the Fourteenth Court of Appeals held that a special warranty deed’s arbitration provision did not constitute a covenant running with the land that bound the home’s future purchasers to its terms.

The Lennar defendants conveyed a home to its original purchaser via a special warranty deed containing an arbitration provision. After purchasing the home from the original purchaser, Whiteley sued the defendants and asserted claims arising from an alleged mold problem in the home. Following arbitration, an award was rendered for the defendants, and they sought to confirm the award in the trial court. Whitely filed a motion to vacate the award and asserted the parties were not bound by a valid arbitration agreement. The trial court granted Whiteley’s motion.

The arbitration provision at issue included all disputes arising from or related to the special warranty deed or the home; the provision also stated that it “shall run with the land and be binding upon the successors and assigns of Grantee.” Relying on these terms, the defendants argued that the arbitration provision was a covenant running with the land that bound Whiteley to its terms.

Rejecting this argument, the court noted that covenants running with the land typically are those “affecting the nature, quality, or value of the subject property.” In contrast, the arbitration provision at issue was “not premised on the physical use or enjoyment of the conveyed property” but instead merely provided a less expensive alternative to traditional litigation.  Reasoning that “[a]voiding the time and expense of litigation inures to the benefit of the parties—not to the property itself,” the court held that the arbitration provision was “more akin to a personal covenant rather than a covenant that touches and concerns the land.”  Moreover, as the court noted, the Texas Supreme Court previously had identified only six theories under which non-signatories to an arbitration agreement may be bound by its terms, and covenants running with the land were not identified as one of those theories.

The court affirmed the trial court’s order granting Whiteley’s motion to vacate the arbitration award.


Dillard v. SNC-Lavalin Eng’rs & Constructors Inc., 629 S.W.3d 692, 2021 WL 2149219 (Tex. App.—Houston [1st Dist.] 2021, no pet. h.) (Goodman, J.).

In Dillard v. SNC-Lavalin Engineers & Constructors Inc., the First Court of Appeals provided guidance on the evidence necessary to raise an issue of fact regarding a “disability” for purposes of establishing a claim under the Texas Commission on Human Rights Act (“TCHRA”).

As part of his employment, Kirk Dillard was selected to take an alcohol test via a breathalyzer. Dillard tested positive for the presence of alcohol on two breathalyzer tests. Dillard requested either a urine or blood test as an accommodation for his diabetes, reasoning that “as a diabetic, he could give false positive breathalyzer test results due to ketoacidosis.” The defendant employer denied Dillard’s request, and Dillard sued, asserting that his diabetes qualified as a disability requiring reasonable accommodation under the TCHRA.

The defendant filed a no-evidence summary judgment motion. In response, Dillard’s sole evidence of a disability was his own declaration stating that he “was diagnosed with Hyperglycemia (diabetes)” and was “required to take prescribed medication to control its symptoms.”

Affirming the trial court’s order granting summary judgment, the court held Dillard’s declaration did not raise an issue of material fact regarding Dillard’s disability status. Discussing the “minimal” evidentiary burden set by the TCHRA and the Americans with Disabilities Act, the court stated that both “require a plaintiff’s impairment to substantially limit a major life activity to qualify as disabling.” Concluding that showing was not made here, the court held that “[e]vidence the plaintiff uses an unidentified medication to control unspecified symptoms of unstated severity or significance, standing alone, cannot raise a fact issue as to whether his impairment substantially limits a major life activity.”