In Re Bison Building Materials (Tex.App.- Houston [1st Dist.] June 26, 2008)(Radack)
(arbitration mandamus, employment, no waiver found)
DECISION: The Court conditionally grant the petition for mandamus in Cause No. 01-07-00003-CV directing
the trial court judge to vacate her order denying Bison’s motion to compel arbitration and will issue the writ
only if the trial court refuses to vacate its order in compliance with this opinion.
The interlocutory appeal in Cause No. 01-07-00029-CV in dismissed for lack of jurisdiction. Cf. In re D.
Wilson Constr. Co., 196 S.W.3d at 783–84 (dismissing interlocutory appeal as moot because both TGAA
and FAA applied). The court denies all pending motions and lifts the stay order of January 8, 2007.
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Chief Justice Sherry Radack
Before Chief Justice Radack, Justices Alcala and Bland
01-07-00003-CV In re Bison Building Materials, Ltd.
Appeal from 212th District Court of Galveston County
Trial Court Judge: Hon. Susan Elizabeth Criss
MEMORANDUM OPINION
Bison Building Materials, Ltd. (Bison) moved to compel arbitration in the trial court and has challenged
denial of that request as an abuse of discretion by interlocutory appeal and by petition for a writ of
mandamus. See Tex. Civ. Prac. & Rem. Code Ann. § 171.098(a)(1) (Vernon 2005) (authorizing appeal of
interlocutory order denying motion to compel arbitration pursuant to Texas General Arbitration Act (TGAA)
in accordance with chapter 171 of Civil Practice and Remedies Code, Tex. Civ. Prac. & Rem. Code §
171.001–.098 (Vernon 2005)); In re D. Wilson Constr. Co., 196 S.W.3d 774, 780 (Tex. 2006) (exercising
mandamus jurisdiction over order denying motion to compel arbitration pursuant to Federal Arbitration Act
(FAA)). Tracy Sambrano is the real-party-in-interest in Cause No. 01-07-00003-CV and the appellee in
Cause No. 01-07-00029-CV. Sambrano was an at-will employee of Bison who was injured on the job in early
August 2004. Though she received benefits under Bison’s welfare-benefit plan, Sambrano sued Bison,
claiming that its negligence caused her injuries. Bison moved to compel arbitration of Sambrano’s claims
and now challenges the trial court’s ruling denying that motion.
We conditionally grant mandamus relief in accordance with FAA preemption and dismiss the interlocutory
appeal for lack of jurisdiction.
Background
Bison is a nonsubscriber under the Workers’ Compensation Act, having elected not to provide workers’
compensation benefits to its employees. See Tex. Lab. Code Ann. § 406.002 (Vernon 2006). Footnote
Bison chose to adopt, instead, the “Bison Building Materials, Ltd.’s Workplace Injury Plan” (Plan), an
employee welfare-benefit plan for its workers. As an employee hired after September 1, 2001, when the Plan
became effective, Sambrano was eligible to participate in the Plan on hiring.
Sambrano applied for at-will employment at Bison on January 29, 2002. On February 13, 2002 she
acknowledged receipt of the 15-page “Summary Plan Description” of the Plan. As stated in the summary, the
Plan provided for lost income, medical care, and accidental death and dismemberment benefits to workers
who sustained “occupational injuries.” The Plan required no contributions by Bison employees, but placed
maximum limits on recovery of benefits. Footnote
A. The Plan
1. General Considerations
The first page of the Plan summary stated in bold face that the Plan was not a policy of workers’
compensation insurance. Footnote The Plan defined eligibility for Plan benefits as “contingent on . . .
fulfilling all [Plan] requirements for benefits” and specified that only limited benefits would be payable unless
the employee “complied with all of the requirements of the [Plan].” Payment of benefits was further
conditioned on the employee’s having sustained an “Occupational Injury,” as defined in the Plan summary.
The Plan summary set out the requirements for recovery of the three types of payable benefits, specifically,
lost time (income); medical-care; and accidental death, dismemberment, or paralysis.
2. Medical-Care Benefits
Regarding medical-care benefits, the Plan summary imposed several prerequisites to eligibility for benefits,
including the following: “You must sign the Post Injury Waiver and Release in order to be eligible to receive
Medical Care Benefits . . . .” This requirement was repeated in a different section of the Plan summary,
under the heading “REQUIREMENTS YOU MUST FULFILL FOR BENEFITS” (emphasis in original), which set
out five requirements that had to be fulfilled “in order to receive any benefits related to [an employee’s]
Occupational Injury.” The third of these requirements was to “Sign a Post Injury Waiver and Release form”
(post-injury litigation waiver). By signing a post-injury litigation waiver, an injured employee surrendered the
“right to file a legal action against [Bison] for the injury.” The fifth requirement stated in the Plan summary
was to “Comply with all the other provisions and rules of the [Plan].”
3. Claims Procedures
The CLAIMS PROCEDURES provisions of the Plan summary also included the requirement to sign the post-
injury litigation waiver, under the heading, “1. Making Your Claim” (all emphasis in original). Under the
heading, DISQUALIFICATIONS/EXCLUSIONS, the Plan summary listed 13 reasons that would result in lack
of benefits. These included both failure to comply with Plan requirements and
[F]il[ing] a legal action against [Bison], the Claims Administrator, the Plan Administrator, or the PLAN for
damages related to an Occupational Injury for which the PLAN is providing or may be obligated to provide
benefits.
4. Arbitration Sole Remedy for Employees Dissatisfied with Plan Benefits
Also under the heading, “CLAIMS PROCEDURES” (emphasis in original), the Plan summary outlined a five-
step process, from making a claim, acceptance of the claim, or, alternatively, denial of a claim, through
mediation and final review. In accordance with the exclusion or disqualification for filing “a legal action,”
addressed above, the fifth and final review provisions states,
5.Final Review Procedure: Final and Binding Arbitration:
If the matter is not resolved through mediation, and you are still dissatisfied with a decision of the PLAN
administrator concerning:
a. the application of the PLAN to the injury[;]
b. the amount or duration of the payments under the PLAN;
c. the performance by the Plan Administrator of its obligations under the PLAN; or
d. any interpretation of the PLAN by the Plan Administrator;
you may file a written request with the Plan Administrator for arbitration by an impartial arbitrator . . . .
The claims procedures section of the Plan summary concludes with the following statement:
“FINAL AND BINDING ARBITRATION IS YOUR SOLE REMEDY IF YOU ARE DISSATISFIED WITH YOUR
TREATMENT UNDER THE PLAN.”
(Emphasis in original.)
On August 7, 2003, after she had been working for Bison for about a year and a half, Sambrano signed an
additional acknowledgment on receiving a copy of Bison’s Policy Manual. The record does not disclose the
contents of the manual, but Sambrano’s acknowledgment includes the following recitals: (1) “I have reviewed
and understand the benefits given to me by [Bison]” and (2) “I further understand that my employment is
terminable ‘at will,’ either by myself or [Bison] regardless of the length of my employment or the granting of
benefits of any kind.”
B. Sambrano’s Injury and Post-Injury Litigation Waiver
Sambrano sustained an injury to her leg at work on August 5, 2004 and was hospitalized. Just after
Sambrano received emergency treatment and was awaiting further treatment, a Bison representative arrived
at the hospital and presented the post-injury litigation waiver form to Sambrano. Footnote Sambrano signed
the form while awaiting treatment that same day. Footnote It is undisputed that Sambrano received benefits
under the Plan. Footnote
C. Sambrano’s Lawsuit
A year and a half later, in February 2006, Sambrano sued Bison, seeking damages for her injuries.
Sambrano’s pleadings allege that her leg injury is permanent, and she claimed that Bison’s negligence
proximately caused her injuries. Bison’s answered that Sambrano had waived any right to sue Bison by
signing the post-injury litigation waiver. Bison also asserted waiver, release, estoppel, and election of
remedies. Both parties demanded a jury trial. In an amended pleading, Sambrano alleged alternative claims,
contending that the post-injury litigation waiver was “void as to public policy,” that Bison had procured the
document by undue influence and duress, or that the document was procedurally unconscionable and
therefore unenforceable.
Bison moved for summary judgment based on Sambrano’s having executed the post-injury litigation waiver,
but did not prevail. Shortly thereafter, Bison moved to compel arbitration. In accordance with arbitration
provisions of the Plan, Bison argued that “final and binding arbitration” was Sambrano’s only remedy, as a
Plan recipient, for claims relating to the application of the Plan to the injury and the amount or duration of
payments under the Plan. Sambrano opposed arbitration by claiming that Bison had waived any right to
arbitrate, having substantially invoked the litigation process, and she re-urged her claim that she had signed
the post-injury litigation waiver under duress. The parties agreed to continue the trial setting, and the trial
court conducted a hearing on the motion to compel shortly before the trial date.
The reporter’s record of the hearing shows the trial court denied the motion to compel “based on the
evidence submitted by [Bison] and the argument of both counsel.” The trial court did not otherwise specify
the grounds for its ruling. Footnote Bison challenges the ruling by petition for a writ of mandamus and by
interlocutory appeal.
Standard of Review—Denial of Motion to Compel Arbitration
We review denial of a motion to compel arbitration for abuse of discretion. See In re D. Wilson Const. Co.,
196 S.W.3d at 780 (applying standard to grant mandamus relief under FAA). A trial court abuses its
discretion when it acts arbitrarily or unreasonably and without reference to any guiding rules or principles.
See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Because a trial court has no discretion in
determining what the law is, which law governs, or how to apply the law, we review this category of
discretionary rulings de novo. See Walker, 827 S.W.2d at 840. Footnote We apply this standard here,
because the record in the interlocutory appeal and in support of the petition for mandamus reflect that the
trial court based its ruling on the documentary evidence that Bison offered in support of its motion to
compel, which included the Plan summary, Sambrano’s acknowledgments, and Sambrano’s post-injury
litigation waiver.
We also review de novo, as a matter of law, whether the agreement imposes a duty to arbitrate, because
this raises a question of contract interpretation, which is a a question of law for the court. See In re Dillard
Dep’t Stores, Inc., 186 S.W.3d 514, 515 (Tex. 2006). Courts construe arbitration agreements according to
well-settled, state-law contract principles. See In re D. Wilson Constr., 196 S.W.3d at 781 (citing First
Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S. Ct. 1920, 1924 (1995)); Pepe Int’l Dev. Co. v.
Pub Brewing Co., 915 S.W.2d 925, 930 (Tex. App.—Houston [1st Dist.] 1996, no writ) (combined appeal and
orig. proceeding). To prevail on its motion to compel arbitration, Bison had to establish its right to that
remedy under the arbitration clause of the Plan summary as a matter of Texas law. See In re D. Wilson
Constr., 196 S.W.3d at 781; Belmont Constructors, Inc. v. Lyondell Petrochem. Co., 896 S.W.2d 352, 356–
57 (Tex. App.—Houston [1st Dist.] 1995, no writ) (combined appeal and orig. proceeding).
Agreement to Arbitrate
Courts may not order parties to arbitrate unless they have agreed to arbitrate. Belmont Constructors, Inc.,
896 S.W.2d at 356–57. Therefore, despite strong presumptions that favor arbitration, a valid agreement to
arbitrate remains a settled, threshold requirement to obtaining relief, whether under the TGAA or the FAA.
See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003) (TGAA) (citing Fleetwood Enters., Inc.
v. Gaskamp, 280 F.3d 1069, 1073 (5th Cir. 2002) (noting that federal policy favoring arbitration does not
remove preliminary requirement of valid agreement to arbitrate); see also In re Kellogg Brown & Root, Inc.,
166 S.W.3d 732, 737–38 (Tex. 2005) (stating that presumption favoring arbitration arises only after party
seeking to compel arbitration establishes valid agreement to arbitrate, because purpose of FAA is to “‘make
arbitration agreements as enforceable as other contracts, not more so.’”) (quoting Bridas S.A.P.I.C. v. Gov’t
of Turkm., 345 F.3d 347, 354 n.4 (5th Cir. 2003)).
A. Whether Sambrano Agreed to Arbitrate
Sambrano was an at-will employee and thus had no contract of employment, which gives rise to a question
regarding her agreement to the provisions of the Plan. Bison had only to prove, however, that Sambrano
received notice of the arbitration clause in the Plan and accepted its provisions in order to be entitled to rely
on the arbitration clause and enforce it. See In re Dallas Peterbilt, Ltd., 196 S.W.3d 161, 162 (Tex. 2006); In
re Halliburton Co., 80 S.W.3d 566, 568 (Tex. 2002). Sambrano does not dispute notice of the Plan and, in
fact, refers to “an agreement” between her and Bison. She does not, however, refer to the Plan as the
agreement. Instead, she argues that no agreement arose until she signed the post-injury litigation waiver
because she was not “eligible” for benefits until then. Sambrano contends that because she did not perform
that “condition precedent” until after her injury, she did not agree to arbitrate “anything” until then and thus
did not accept the Plan provisions until then. As demonstrated below, Sambrano had notice of the Plan,
accepted its terms before her injury, and therefore agreed to arbitrate. See In re Dallas Peterbilt, Ltd., 196 S.
W.3d at 162.
1. Notice
In the arbitration context, an employee has notice if she has knowledge of the terms of her employment. In
re Dallas Peterbilt, Ltd., 196 S.W.3d at 162 (citing Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 229 (Tex.
1986)). In re Halliburton & Co. emphasized the importance of notice, but also held that a one-page summary
of the actual agreement to arbitrate sufficed as notice. 80 S.W.3d at 568–69.
In this case, Sambrano acknowledged receipt of Bison’s 15-page Plan summary on February 13, 2002 as
part of her hiring process at Bison. This summary contains the arbitration clause, stated in emphasized text,
which describes final and binding arbitration as the final step of the claims-procedures process. This same
section of the Plan states, also in emphasized text, that final and binding arbitration is Sambrano’s only
remedy if she were dissatisfied with treatment under the Plan. In accordance with arbitration as the “sole
remedy,” the Plan summary also notifies that disqualification or exclusion from benefits would result from (1)
“filing a legal action” for damages related to an occupational injury, as Sambrano did here, or (2) failing to
comply with Plan requirements. And after she had been working for Bison for about 18 months, Sambrano
again signed an acknowledgment, on receiving Bison’s Policy Manual, that included the statement, “I have
reviewed and understand the benefits given to me. . . .” See In re Dallas Peterbilt., Ltd., 196 S.W.3d at 162
(stating that “notice analysis” is not restricted to underlying agreement, but encompasses “all
communications” between employer and employee). Sambrano’s notice of the arbitration provisions of the
Plan is clearly established.
2. Acceptance
It is undisputed that Sambrano was employed by Bison, as an at-will employee, on the day she was injured.
As demonstrated above, Sambrano had notice of the terms of the Plan, as provided by the Plan summary,
including the arbitration clause and its provisions and the corresponding prohibition against filing a legal
action at the risk of loss of benefits. Furthermore, she confirmed that she had reviewed and understood her
benefits 18 months after she had been working for Bison.
As an at-will employee who received notice of Bison’s arbitration policy, as stated in the Plan, and
continued working for Bison with knowledge of that policy, Sambrano accepted those terms of the Plan as a
matter of law. See id., 196 S.W.3d at 193 (citing In re Dillard Dep’t Stores, Inc., 181 S.W.3d at 375).
B. Whether Sambrano Asserted Defenses to the Arbitration Clause
Sambrano acknowledges Bison’s arguments and the In re Dallas Peterbilt, Ltd. holding, but argues that
Bison improperly obtained her acceptance and, therefore, that no acceptance ever occurred. We disagree.
Sambrano challenges her acceptance by asserting two defenses—duress and “procedural”
unconscionability. As the party opposing arbitration, Sambrano had the burden to prove her defenses. In re
FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex. 2001).
Sambrano’s claimed defenses trigger questions of procedural versus substantive arbitrability. See Howsam
v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84–86, 123 S. Ct. 588, 592–93 (2002); In re Neutral Posture,
Inc., 135 S.W.3d 725, 728 (Tex. App.—Houston [1st Dist.] 2003) (orig. proceeding). Procedural arbitrability
pertains to questions that “grow out of the dispute and bear on its final disposition,” for example, whether
conditions precedent have been met, notice, time limits, lâches, and estoppel; procedural arbitrability issues
are reserved for resolution by the arbitrator. Footnote Howsam, 537 U.S. at 84–85, 123 S. Ct. at 592; In re
Neutral Posture, 135 S.W.3d at 728. Footnote In contrast, the trial judge decides questions of substantive
arbitrability, which implicate “gateway” issues, for example, whether a particular agreement binds the parties
to arbitrate, which Sambrano disputes here. See Howsam, 537 U.S. at 85, 123 S. Ct. at 592; In re Neutral
Posture. 135 S.W.3d at 728; see also Perry Homes v. Cull, No. 05-0882, 2008 WL 1922978 at *4 (Tex. May
2, 2008) (“[C]ourts decide defenses relating solely to the arbitration clause,” as opposed to defenses that
pertain to entire contract, which are for arbitrator); In re FirstMerit Bank, N.A., 52 S.W.3d at 756 (“[I]f they
are to defeat arbitration,” defenses “must relate specifically” to arbitration provisions; “[d]efenses that
pertain to the entire . . . contract can be arbitrated.”) (citing Prima Paint Corp. v. Flood & Conklin Mfg. Co.,
388 U.S. 395, 403–04, 87 S. Ct. 1801, 1806 (1967)).
Though Sambrano purports to challenge whether she agreed to arbitrate, the defenses she asserts and
her arguments in support of those defenses do not present that challenge. Just as she claimed there was no
agreement to arbitrate until she signed the post-injury litigation waiver, Sambrano’s defenses also focus
exclusively on that document. Sambrano’s claim of duress relates only to the circumstances under which she
signed the post-injury litigation waiver. She relies on those same circumstances in claiming that the waiver
was rendered unconscionable.
But nothing whatsoever in the post-injury waiver refers to arbitration or relates to arbitration. Footnote The
arbitration clause, and its corresponding prohibition against litigation for those receiving Plan benefits,
appears only in the Plan summary. As a matter of law, Sambrano acknowledged and accepted the terms of
the Plan summary, including its arbitration provisions, by continuing her employment, as explained above.
Sambrano does not attempt to apply her claimed defenses to the Plan summary or its arbitration clause, and
the defenses do not relate to the Plan Summary or its arbitration clause. Accordingly, there was no
preliminary, “gateway” question of substantive arbitrability that remained for resolution by the trial judge—to
prevent referring the case to arbitration—regarding whether Sambrano had agreed to arbitrate. See
Howsam, 537 U.S. at 85, 123 S. Ct. at 592; Perry Homes, 2008 WL 1922978 at *4; In re FirstMerit Bank, N.
A., 52 S.W.3d at 756.
We hold that Sambrano neither alleged that her asserted defenses applied to the her acceptance of the
Plan summary, which alone contained the arbitration requirement, nor proved that her asserted defenses
applied to her acceptance of the Plan summary. Footnote
FAA or TGAA?
We determine next whether the FAA or the TGAA applies, because the inquiry determines our jurisdiction.
See Tex. Civ. Prac. & Rem. Code Ann. § 171.098(a)(1); In re D. Wilson Const. Co., 196 S.W.3d at 780 & n.
4, 784 (Brister, J., concurring); Kilroy v. Kilroy, 137 S.W.3d 780, 783 (Tex. App.—Houston [1st Dist.] 2004)
(orig. proceeding) (stating that Court must address its jurisdiction even if not raised by parties) (citing
McCauley v. Consol. Underwriters, 304 S.W.2d 265, 266 (Tex. 1957)).
A. The Plan “Invokes” the FAA
Sambrano challenges our jurisdiction to consider Bison’s challenge by mandamus on the grounds that the
arbitration clause in the Plan does not “invoke” the FAA. Footnote Absent certain exceptions that do not
apply here, the FAA applies to all suits in state or federal court, when the dispute concerns a “contract
evidencing a transaction involving commerce.” Jack B. Anglin Co., 842 S.W.2d 266, 269–70 (Tex. 1992).
The arbitration clause of The Plan summary does not specify whether the FAA or the TGAA controls.
Accordingly, both may apply. See In re D. Wilson Constr., 196 S.W.3d at 779–80. The provision mandating
arbitration in the Plan summary that Sambrano accepted here is “valid, irrevocable, and enforceable”
pursuant to section 2 of the FAA, “save upon such grounds as exist at law or in equity for the revocation of
any contract.” See 9 U.S.C.S. § 2 (1997). This section of the FAA reflects the intent of Congress to establish
a liberal federal policy that (1) favors arbitration, despite contrary substantive or procedural state policies,
and (2) establishes a federal substantive law of arbitrability that applies to any arbitration agreement within
the FAA. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S. Ct. 927, 941 (1983).
Courts must, therefore, resolve any doubts about the scope of an arbitration agreement in favor of
arbitration. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S. Ct. 3346,
3353–54 (1985); In re FirstMerit Bank, N.A., 52 S.W.3d at 753.
1. An “Employee Welfare-Benefit Plan” regulated by ERISA
The federal Employee Retirement Income Security Act of 1974 (ERISA) defines an “employee welfare
benefit plan” to include
any plan, fund, or program . . . established or maintained by an employer . . . to the extent that such plan,
fund, or program was established or is maintained for the purpose of providing for its participants or their
beneficiaries, through the purchase of insurance or otherwise, medical, surgical, or hospital care or benefits,
or benefits in the event of sickness, accident, disability, death, or unemployment . . . .”
29 U.S.C.S. § 1002(1) (A) (2006); see Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44, 107 S. Ct. 1549, 1551
(1987).
The Plan summary that Sambrano acknowledged in this case recites that Bison established and
maintained the Plan to provide benefits to its employees and their beneficiaries because of “occupational
injury,” as defined in the Plan summary, or death. In addition, the Plan summary notified participants of their
rights under ERISA. The Plan is an “employee welfare-benefit plan” regulated by ERISA. 29 U.S.C.S. § 1002
(1).
2. Plan Affects Both Interstate Commerce & Federal Taxing Power
Settled law recognizes that arbitration may apply in the employment context. See Circuit City Stores, Inc. v.
Adams, 532 U.S. 105, 113–15, 121 S. Ct. 1302, 1308–09 (2001); In re Halliburton Co., 80 S.W.3d at 570.
Section 1001(a) of ERISA declares that employee welfare-benefit plans affect not only interstate commerce,
but also the federal taxing power. 29 U.S.C.S. § 1001(a) (2006). Footnote The Plan affects interstate
commerce under the plain language of ERISA, as well as the federal taxing power. See id.
B. Whether the FAA Preempts Texas Law—Four-Part Test
When, as here, an arbitration clause does not specify whether the TGAA or the FAA applies, with the result
that both may apply, a question of federal preemption arises. See In re D. Wilson Constr., 196 S.W.3d at
779–80. The FAA preempts only contrary state law, not consonant, state law. See id., 196 S.W.3d at 779.
The FAA itself contains no provisions that expressly exempt state law, but state law may nonetheless conflict
with the FAA “to the extent that it ‘stands as an obstacle to the accomplishment and execution of the full
purposes and objectives’” of Congressional intent in enacting the FAA. See id. (quoting Volt Info. Scis, Inc.
v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 477–78, 109 S. Ct. 399, 1248, 1255 (1989)
(quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 404 (1941))); see also Perry v. Thomas, 482 U.
S. 483, 489, 492 & n.9, 107 S. Ct. 2520, 2525, 2527 & n. 9 (1987) (stating that supremacy clause of United
States Constitution compels that FAA control over state legislative or judicial attempts to undercut
enforceability of arbitration agreements) (citing U.S. Const. art. IV, cl. 2.)). The dispositive inquiry is whether
application of state law “would undermine the goals and policies of the FAA.” In re D. Wilson Constr., 196 S.
W.3d at 779; see also Jack B. Anglin Co., 842 S.W.2d at 271 (Tex. 1982) (“[The FAA] preempts state
statutes to the extent they are inconsistent with [the FAA]”; holding that FAA preempted nonwaiver
provisions of DTPA).
Applying state law will undermine the goals and policies of the FAA, which will, therefore, preempt the
contrary state law, when, but only when: (1) the agreement is in writing; (2) it involves interstate commerce;
(3) it can withstand scrutiny under traditional contract defenses under state law and (4) state law affects
enforceability of the agreement.” In re D. Wilson Constr., 196 S.W.3d at 780 (emphasis in original) (citing In
re Nexion Health at Humble, Inc., 173 S.W.3d 67, 69 (Tex. 2005) (stating four-part test)). This analysis
follows.
1. Elements One through Three
The arbitration provision at issue here is part of Bison’s Plan, which is in writing and involves interstate
commerce, as explained above. In addition, the arbitration provisions of Bison’s Plan can withstand scrutiny
under Sambrano’s claimed defenses. As our analysis demonstrates, despite Sambrano’s claimed defenses,
Bison is entitled to enforce the arbitration provisions of the Plan because Sambrano accepted them as a
matter of law by acknowledging the Plan summary and continuing to work for Bison. In re Dallas Peterbilt,
Ltd., 196 S.W.3d at 163.
2. State Law Undercuts Enforceability
Under the final step of the preemption analysis, we determine whether Texas law affects enforceability of
the arbitration requirement stated in the Plan summary. See In re D. Wilson Constr., 196 S.W.3d at 780
(noting that TGAA expressly exempts certain claims to which it does not apply). For the FAA to preempt
state law, state law must refuse to enforce an arbitration agreement that the FAA would enforce. See id.
a. The TGAA
Sambrano’s claims in the underlying lawsuit allege that Bison’s negligence caused her injuries. For a claim
for personal injuries to be “subject to” and therefore enforceable under the TGAA, (1) each party to the
claim must, “on the advice of counsel, agree[] in writing to arbitrate and (2) the agreement to arbitrate must
be signed by each party and each party’s counsel. Tex. Civ. Prac. & Rem. Code Ann. §§ 171.002(a)(3), (c)
(1)–(2).
Neither of these prerequisites occurred in this case. Sections 171.002(a)(3) and (c)(1)(2) of the TGAA
would, therefore, refuse to enforce the arbitration clause in the Plan summary, despite Sambrano’s having
accepted it as a matter of law under In re Dallas Peterbilt, Ltd., 196 S.W.3d at 163. The TGAA interferes,
therefore, with enforceability of the arbitration clause that Sambrano acknowledged here by adding the
additional prerequisites of consent and signature of counsel. See In re Nexion Health at Humble, Inc., 173 S.
W.3d at 69 (interpreting sections 171.002(a)(3) and (c)(3)). Accordingly, the FAA preempts the TGAA. See
id.
b. Labor Code Sections 406.033(a) and (e)
The Labor Code classifies Bison as an employer who exercised its right not to provide workers’
compensation coverage for its employees. See Tex. Lab. Code Ann. § 406.002. Having elected not to
provide workers’ compensation insurance, Bison became subject to suit by an employee to recover
damages for any personal injuries she sustained while in the course and scope of her employment. See
Tex. Lab. Code Ann. § 406.033(a) (Vernon 2006). As an additional consequence, if Bison were to be sued,
Bison could not assert either the common-law defenses enumerated in section 406.033(a)(1) or statutory
comparative responsibility in any such lawsuit. See Tex. Lab. Code Ann. § 406.033(a)(1)–(3) (Vernon
2006); Footnote Kroger Co. v. Keng, 23 S.W.3d 347, 350–51 (Tex. 2000) (rejecting comparative
responsibility as available defense to nonsubscribing employer).
But the Plan that Bison adopted in lieu of providing workers’ compensation benefits eliminates the
applicability of these prohibitions. This is because the Plan bars any lawsuit whatsoever relating to recovery
of damages for an employee’s occupational injuries under section 406.033(a), when the Plan “is providing
or may be obligated to provide benefits.” As the Plan summary dictates, filing “a legal action” against Bison
when the Plan “is providing or may be obligated to provide benefits” constitutes a “disqualification” or
“exclusion” from Plan benefits. In addition, section 406.033(e) of the Labor Code renders “void and
unenforceable” any agreement by an employee that waives either a cause of action under subsection (a) of
section 406.033 or any right described in that subsection when that agreement occurs before the injury or
the death. Tex. Lab. Code Ann. § 406.033(e) (Vernon 2006). Footnote
By acknowledging the Plan summary on hiring, Sambrano acknowledged, before her injury, that filing a
lawsuit relating to any injury would result in no Plan benefits if she elected to participate in the Plan for an
injury—despite the prohibition against pre-injury waiver in section 406.033(e). Sambrano also acknowledged
that failure to comply with Plan requirements was an additional basis for “disqualification” or “exclusion”
stated in the Plan summary. The Plan is even more specific in precluding litigation for Plan participants
because the claims-procedure process outlined in the Plan summary compels final and binding arbitration
as the sole remedy for an employee who is dissatisfied with benefits or treatment under the Plan, again
despite section 406.033(e)’s prohibitions. By continuing to work for Bison, Sambrano accepted these terms.
See In re Dallas Peterbilt, Ltd., 196 S.W.3d at 163. The prohibition against pre-injury waiver stated in
section 406.033(e) could, therefore, render the arbitration clause of the Plan unenforceable.
We have already held that the Plan affects interstate commerce pursuant to ERISA and now hold that the
FAA preempts any potential application of the Texas non-waiver provision stated in Labor Code section
406.033(e) to prevent enforcement of the arbitration clause stated in the Plan. In reaching this conclusion,
we have found persuasive the reasoning of our sister court of appeals in In re Border Steel, Inc., 229 S.W.
3d 825, 832 (Tex. App.—El Paso 2007) (orig. proceeding).
In accordance with FAA preemption, Bison’s remedy in this Court is by mandamus. See In re Weekley
Homes, L.P., 180 S.W.3d 127, 130 (Tex. 2005) (recognizing propriety of mandamus relief to enforce
arbitration agreements governed by FAA); see also In re Dallas Peterbilt, Ltd., 196 S.W.3d at 163 (noting
lack of adequate remedy by appeal for party denied “contracted-for” right to arbitration under FAA) (citing
Jack B. Anglin Co., 842 S.W.2d at 272–73). Footnote
Whether the Arbitration Clause Encompasses Sambrano’s Claims
Having determined that Bison may enforce the arbitration provisions of the Plan against Sambrano and
that the FAA applies, we address Sambrano’s contention that her claims are not within the scope of the
Plan. See In re FirstMerit Bank, N.A., 52 S.W.3d at 753. Sambrano contends that the arbitration provisions
here do not encompass her personal injury lawsuit because the provisions are narrowly related to the claims
process and a decision by the plan administrator to deny a claim in whole or in part.
Sambrano’s contentions ignore that the purpose of the Plan is to provide benefits for employees, like
Sambrano, “who are injured on the job.” Though Sambrano claims the Plan relates solely to the claims
process, that process cannot begin until there is a claim for an “occupational injury.” The Plan defines an
“occupational injury” as “any physical injury you sustain in the normal course of performing your duties for
[Bison].” According to her live pleadings in the underlying case, Sambrano “permanently injured her leg”
“while in the course of the employ of [Bison],” when she was “struck by product being moved be a coworker.”
The injury for which Sambrano seeks to recover damages from Bison is thus an “occupational injury”
defined by the Plan and within the scope of the five-step claims process of the Plan. The last step of this
Plan mandates “final and binding arbitration” to resolve “dissatisfaction” regarding all decisions by the Plan
administrator regarding benefits to be paid for that injury. Footnote The Plan’s concluding provisions
remove all doubt regarding compulsory arbitration by specifying even more broadly that “full and binding
arbitration” is the “sole remedy” for anyone “dissatisfied” with “treatment” under the Plan. Sambrano
accepted all of these terms through her continued employment at Bison. See In re Dallas Peterbilt, Ltd., 196
S.W.3d at 163. Her lawsuit thus violates both the Plan’s prohibition against pursuing a legal action against
Bison for her injuries and the corresponding requirement that she arbitrate those claims.
We reject Sambrano’s narrow interpretation of the Plan and hold that the arbitration provisions of the Plan
encompass the claims she alleged in her lawsuit against Bison and therefore control. We further hold,
therefore, that Bison conclusively established its right to arbitrate Sambrano’s claims.
As in the trial court, however, Sambrano opposes Bison’s request for mandamus relief by contending that
Bison substantially invoked the judicial process and therefore waived any right to arbitration. Because we
have recognized that Bison established its right to arbitration, and because the law favors arbitration and
strongly disfavors waiver of arbitration, Sambrano must overcome a “high” “hurdle” in order to establish that
Bison waived that right. See Perry Homes, 2008 WL 1922978 at 4.
Whether Bison Substantially Invoked the Litigation Process
A. Standard of Review: Totality of Circumstances
Whether Bison substantially invoked the judicial process is a question of law that we determine from the
totality of the circumstances of this particular case. See id. The dispositive inquiry is whether Bison, as the
party seeking arbitration, invoked the judicial process to such a degree that its actions resulted in prejudice
or detriment to Sombrano. See In re Citigroup Global Mkts., No. 06-0886, 2008 WL 2069835 at *1 (Tex. May
16, 2008) (citing Perry Homes, 2008 WL 1922978 at *4).
Well-settled law recognizes presumptions that favor arbitration of disputes. E.g., In re Kellogg Brown &
Root, Inc., 166 S.W.3d at 737–38. A “strong” presumption thus arises against waiver of arbitration rights. In
re D. Wilson Constr., 196 S.W.3d at 783; see also Perry Homes, 2008 WL 1922978 at *4, 6 (stating that
waiver by substantially invoking judicial process compels “high” evidentiary “hurdle,” because of “strong
presumption” against waiver, which “should govern” “in close cases”); In re Bank One, N.A., 216 S.W.3d
825, 827 (Tex. 2007) (recognizing “strong” presumption against waiver; further stating that waiver “must be
intentional”) (citing and quoting EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 88 (Tex. 1996) (applying FAA)).
Yet, parties who “‘conduct full discovery, file motions going to the merits, and seek arbitration only on the
eve of trial’” may nonetheless waive contractual rights to arbitrate. In re Citigroup Global Mkts., 2008 WL
2069835 at *1 (quoting In re Vesta Ins. Group, 192 S.W.3d 759, 764 (Tex. 2006)).
Waiver of arbitration rights may be express or implied. See id., 2008 WL 2069835 at *2. Express waiver
arises when a party affirmatively indicates that it wishes to resolve the case in the judicial forum, rather than
through arbitration. In re Citigroup Global Mkts., 2008 WL 2069835 at *2 (rejecting express waiver premised
on party’s having sought transfer to federal multidistrict-litigation court). Implied waiver arises when a party
acts (1) inconsistently with the right to arbitrate and (2) prejudices the opposing party. See id., 2008 WL
2069835 at *2 (“Waiver . . . asks whether a party has substantially invoked the judicial process to the
opponent’s detriment, the latter term meaning inherent unfairness caused by a party’s attempt to have it
both ways by switching between litigation and arbitration to its own advantage.”) (quoting Perry Homes, 2008
WL 1922978 at 8); see also Perry Homes, 2008 WL 1922978 at 6–7 (declining to vacate requirement that
party claiming waiver premised on substantial invocation of judicial process demonstrate prejudice, stating,
“[W]e agree . . . that waiver of arbitration requires a showing of prejudice.”). Sambrano does not contend
here that Bison expressly waived arbitration, but that Bison’s conduct demonstrates an implied waiver of any
right to arbitrate.
B. Discussion
To succeed in challenging the right of Bison to arbitrate recognized by this opinion, on the grounds that
Bison had waived that right by substantially invoking the judicial process, Sambrano had to establish that (1)
Bison pursued the litigation process, but then (2) changed its strategy and pursued arbitration (3) in an
inherently unfair manner that worked to its own advantage and to Sambrano’s prejudice or detriment. See In
re Citigroup Global Mkts., 2008 WL 2069835 at *1; Perry Homes, 2008 WL 1922978 at *4; In re Bank One, N.
A., 216 S.W.3d at 827; In re Vesta Ins. Group, 192 S.W.3d at 763. To meet this burden, Sambrano had to
show that Bison’s pursuit of the litigation process, rather than the arbitration process, was essentially
irretrievable. See Perry Homes, 2008 WL 1922978 at 6 (“In cases of waiver by litigation conduct, the precise
question is not so much when waiver occurs as when a party can no longer take it back.”).
In accordance with the analysis and test announced in Perry Homes and applied in In re Citigroup Global
Markets, we examine the trial-court timetable and the totality of circumstances demonstrated by the record.
1. Timetable
Sambrano sued Bison on February 6, 2006 and demanded a jury. Bison filed its jury demand on March 3,
2006. The trial court scheduled a status conference for May 11, 2006, endorsed the parties’ agreed
discovery and docket control order setting an October 30, 2006 trial date, and scheduled a pretrial
conference for October 23, 2006. Sambrano deposed Bison employees Vidler and Silvas on June 1, 2006,
and filed an amended petition on Jun 17, 2006. Bison served depositions by written questions in April and
May 2006 relating to Sambrano’s treatment and expenses.
Bison’s June 22, 2006 amended answer asserted several defenses derived from Bison’s contention that
the terms of the Plan and Sambrano’s post-injury waiver precluded any lawsuit against Bison premised on
that injury. Bison filed a traditional motion for summary judgment that same day, contending that Sambrano
had intentionally relinquished her right to bring her lawsuit. Bison relied on the following in moving for
summary judgment: Sambrano’s petition; Bison’s own business records pertaining to the Plan and Sambrano’
s employment; and the affidavit of Bison employee Vidler, who stated that he presented the post-injury
waiver to Sambrano and that she indicated that she understood its terms.
Having filed the certificates for her June 1, 2006 depositions of Vidler and Silva on July 1, 2006 and
designated her expert witnesses on July 6, 2006, Sambrano filed her response to Bison’s motion for
summary judgment on July 17, 2006. Her summary-judgment evidence included a page from her deposition
of Vidler. Footnote Like Bison, Sambrano relied on the Plan provisions. In addition, she provided affidavit
testimony in opposition to Bison’s motion, including her own affidavit, regarding her signing the post-injury
waiver. The trial court conducted a hearing on Bison’s motion for summary judgment on July 20, 2006 and
denied the motion that same day.
Bison moved to compel arbitration on September 6, 2006. Sambrano had not yet filed a response to the
motion to compel on October 23, 2006, when the trial court made a docket entry stating that the parties had
entered into an “agreed oral motion for continuance to January 8, 2007.” The same docket entry records
that the trial court reset the pretrial conference to January 2, 2007. Footnote
Sambrano then filed her October 24, 2006 objection to arbitration, in which she claimed only that Bison
had waived any right to arbitrate because it had substantially invoked the litigation process, as follows:
“Written discovery has been conducted, depositions have been taken[,] and the trial court has denied Bison’
s motion for summary judgment.” Sambrano did not identify whether she or Bison had conducted the
discovery or noticed the depositions in question, but the record shows that only Sambrano had deposed
anyone at that point in the timetable, having deposed both Vidler and Silva on June 1, 2006. Bison, on the
other hand, had conducted but minimal discovery, in the form of depositions on written questions for records
of Sambrano’s medical treatment and expense—information to which Bison was entitled whether Sambrano’s
claims were arbitrated or litigated.
Sambrano did not, however, contend that Bison’s request to arbitrate her claims prejudiced her or resulted
in any detriment to her. In fact, she maintained that a showing of prejudice to her was not an “indispensable”
requirement to determining whether Bison had substantially invoked the judicial process, a contention that
the supreme court has since rejected, in both Perry Homes and Citigroup Global Markets, which reaffirmed
the requirement that the party opposing arbitration must demonstrate prejudice or detriment if it seeks to
avoid arbitration because of its opponent’s having substantially invoked the judicial process. Citigroup
Global Mkts., 2008 WL 2069835 at *1; Perry Homes, 2008 WL 1922978 at *7. We note further that
Sambrano offered no evidence to support her contention that Bison had substantially invoked the judicial
process. See In re Citigroup Global Mkts., 2008 WL 2069835 at *3 (holding that opponents to arbitration
“failed to show” waiver by substantial invocation of judicial process); In re Vesta Ins. Group, 192 S.W.3d at
763 (noting that party opposing arbitration had not provided sufficient evidentiary support to demonstrate
“sufficient prejudice to overcome the strong presumption against waiver”); Williams Indus. v. Earth Dev. Sys.,
Inc., 110 S.W.3d 131, 135–36, 139 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (noting evidentiary burden
on party who opposes arbitration to establish prejudice arising from allegedly substantial invocation of
judicial process and holding that burden not met).
The trial court conducted a hearing on Bison’s motion to compel arbitration on January 3, 2007. Sambrano
presented no evidence in opposition to arbitration at the hearing. In addition, she did not present argument
in support of the only defense that she raised in opposition to Bison’s motion to compel, her claim that Bison
had substantially invoked the judicial process. Instead, Sambrano focused on the circumstances under
which she signed the post-injury waiver. Footnote Bison responded that (1) reliance on the post-injury
waiver was misplaced because the document did not address arbitration, and that (2) the provisions of the
Plan, which contained the arbitration provisions, were dispositive because Sambrano had endorsed the Plan
five years earlier, in February 2002, and had not raised any issue or presented any evidence of duress
concerning that date.
The trial court denied Bison’s motion to compel at the conclusion of the January 3, 2007 hearing and
signed the order challenged here on January 5, 2007, whereupon Bison sought leave to stay the January 8,
2007 trial setting and requested a hearing. Also on January 5, 2007, Bison deposed Sombrano. Two days
later, Bison filed a motion to stay the trial setting. This Court ordered the trial proceedings stayed on
January 8, 2007.
1. Delay in Seeking Arbitration
A party may waive its contractual right to arbitrate by seeking arbitration on the eve of trial. In re Citigroup
Global Mkts., 2008 WL 2069835 at *1 (quoting In re Vesta Ins. Group, 192 S.W.3d at 764). In this case,
Bison filed its motion to compel arbitration pursuant to the provisions of the Plan on September 6, 2006.
This date was four months before the January 8, 2007 trial setting, exactly seven months after Sambrano
filed suit, and about six weeks after the trial court denied the motion for summary judgment in which Bison
relied on the terms of the post-injury waiver. Sambrano did not contend in her objection, filed seven weeks
after Bison moved to compel arbitration, that Bison sought arbitration on the eve of trial and did not raise
that argument to the trial court at the January 3, 2007 hearing. We cannot say, based on the record
presented, record, that Bison sought to compel arbitration on the eve of trial.
Sambrano does contend in this Court, though she did not in the trial court, that Bison delayed requesting a
hearing on its previously filed motion to compel. This contention likewise lacks support under the record
presented. We note that a January 2, 2007 docket entry by the trial court refers to a setting on the motion
for January 3, 2007, but the record does not contain a request that the motion to compel be heard on that
date. The record also shows that the trial court heard Bison’s motion to compel on that date, which is the
date set for the pretrial conference under Sambrano’s and Bison’s joint motion for continuance. The record
also reflects that the parties moved jointly to continue the trial, but only after Bison had filed its motion to
compel arbitration, and one day before Sambrano filed her objection. Under the circumstances, the record
does not foreclose that the trial court and the parties had contemplated, early on, that Bison’s motion to
compel would be among matters to be taken up at the pretrial conference on January 3, 2007.
Sambrano did not establish, therefore, that Bison delayed seeking arbitration. Texas courts have rejected
claims of implied waiver under circumstances demonstrating a far lengthier litigation timetables. See In re
Citigroup Global Mkts., 2008 WL 2069835 at *2 (noting seven months of transfer efforts by party that
ultimately filed motion to compel); In re Vesta Ins. Group, 192 S.W.3d at 763 (noting contention by party
opposing arbitration that parties seeking to compel arbitration had been “litigating for two years in the trial
court”).
2. Motions “Going to the Merits”
A party may waive its contractual right to arbitrate by filing dispositive motions that go to the merits of the
case. See In re Citigroup Global Mkts., 2008 WL 2069835 at *1 (quoting In re Vesta Ins. Group, 192 S.W.3d
at 764). Sambrano supports her contention that Bison chose to pursue litigation vigorously, rather than
arbitration, by emphasizing that Bison sought summary judgment before filing its motion to compel. A
party’s seeking relief by a dispositive motion is one of several possible factors to be applied when
considering the totality-of-circumstances test that determines whether a party has waived arbitration by
substantially invoking the judicial process. Perry Homes, 2008 WL 1922978 at *4–5. But it is not the only
factor. Id. The type of dispositive motion contemplated by the Perry Homes factors is a motion that seeks
judgment on the merits. See id.; see also id. at *5 (“Waiver involves substantial invocation of the judicial
process, not just judgment on the merits.”) (emphasis in original).
Bison did not seek summary judgment on the merits of Sambrano’s claims in this case. Rather, the purpose
of Bison’s motion for summary judgment was to avoid litigating Sambrano’s claims, on the grounds that she
had waived any litigation premised on her injuries. Though Bison’s motion sought disposition of Sambrano’s
claims, the grounds stated in the motion did not go to the merits of those claims. Rather, Bison’s moving for
summary judgment based on Sambrano’s having waived any right to litigate. Having the motion heard before
seeking arbitration thus “reflects an effort to avoid litigation activity rather than duplicate it.” In re Citigroup
Global Mkts., 2008 WL 2069835 at *2 (emphasis in original).
3. Conducting Full Discovery
A party may waive its contractual right to arbitrate by conducting “full discovery” on the merits of the case.
See In re Citigroup Global Mkts., 2008 WL 2069835 at *1 (quoting In re Vesta Ins. Group, 192 S.W.3d at
764). In objecting to arbitration, Sambrano argued that “[w]ritten discovery has been conducted [and]
depositions have been taken.” She did not contend that discovery was “full” or “complete.”
As shown by the timetable, under the record presented here, as supplemented by Sambrano, only
Sambrano had taken any depositions, those of Bison employees Vidler and Silvas, when Bison moved to
compel arbitration. See In re Vesta Ins. Group, 192 S.W.3d at 764) (attributing substantial costs incurred
before arbitration to party opposing arbitration); Perry Homes, 2008 WL at *5 (noting relevancy of which
party initiated discovery as factor to waiver issue). Bison, on the other hand, did not depose Sambrano until
January 5, 2007, after the trial court denied Bison’s motion to compel, despite Sambrano’s having
designated her experts five months earlier. See id. As supplemented by Sambrano, the record demonstrates
that Bison conducted written discovery by written questions regarding Sambrano’s treatment and expenses
arbitration. Yet, this is information that would necessarily have been produced whether Sambrano’s claims
were litigated or arbitrated. See id. at *4–5 (noting that federal courts consider whether discovery requested
“would be unavailable in arbitration”). When Bison moved to compel arbitration, therefore, the only discovery
it had requested would have been “useful” either in arbitration or in litigation. In contrast, any discovery that
Sambrano had pursued to attribute fault to Bison or a co-employee would have had no bearing on
compensation for her injuries under the provisions of the Plan and thus would not have been “available” in
arbitration. See id.
Noting in particular that the discovery Bison conducted before moving to compel arbitration pertained
either to litigation or arbitration, and that Bison did not depose Sambrano until after the trial court had
denied Bison’s motion to compel arbitration, the record before us does not show that discovery was either
“complete” or “full.” See In re Citigroup Global Mkts., 2008 WL 2069835 at *1.
4. Prejudice or Detriment to Sambrano
To avoid arbitration because of its opponent’s having substantially invoked the judicial process, the party
opposing arbitration must demonstrate prejudice or detriment. Citigroup Global Mkts., 2008 WL 2069835 at
*1; Perry Homes, 2008 WL 1922978 at *4.
Sambrano failed her burden to establish this element, whose necessity she had disputed at the threshold.
She did not claim prejudice or any detriment in her objection or at the hearing on Bison’s motion to compel
arbitration, and she offered no evidence of either. Accordingly, she did not establish this necessary element.
Citigroup Global Mkts., 2008 WL 2069835 at *1; Perry Homes, 2008 WL 1922978 at *4.
5. Totality of Circumstances Applied
The supreme court concluded in Perry Homes that the plaintiffs in that case had substantially invoked the
judicial process before they sought to arbitrate their claims and, on that basis, vacated the arbitrators
award. 2008 WL 1922978 at *7, 11. In Perry Homes, however, the totality of circumstances established that
the parties who sought to compel arbitration just before trial had “‘vigorously opposed’” the arbitration
requested by the defendants early in the case, and in a response that totaled 79 pages and included broad
attacks on the process of arbitration itself. Id. at 7. Yet, they “change[d] their minds” and moved to compel
arbitration 14 months after they filed suit and just four days before trial was to begin. Id. at *1, 8. At that
point in the litigation process, plaintiffs had “conducted extensive discovery about every subject of the
merits” id., including the following: ten depositions; five motions to compel to which they had attached 76
requests for production; notices of six additional depositions on nine issues, along with a request for 67
categories of documents; and three additional notices of depositions for three defense experts,
accompanied by a request for 24 categories of documents. Id. at *7. Discovery was virtually complete,
therefore, before the plaintiffs requested arbitration. Considering the totality of these circumstances, the
supreme court concluded that the plaintiffs’s conduct had “plainly rebutted” the “strong presumption against
waiver of arbitration.” Id. at *1.
In contrast, the totality of the circumstances in this case does not support Sambrano’s contention that
Bison waived its right to arbitration by substantially invoking the litigation process. To the contrary, whether
by its summary judgment or by arbitration, Bison’s consistent posture was not to invoke litigation, but to
avoid it, whether based on Sambrano’s post-injury waiver of litigation, by summary judgment, or, when that
failed, by arbitration. Bison did not seek to compel arbitration on the eve of trial, and the record does not
affirmatively support Sambrano’s contention in this Court that Bison delayed seeking a hearing on its
motion. Bison’s motion for summary judgment did not “go to the merits,” but to Sambrano’s post-injury waiver
of any litigation for her injuries, and the record presented does not show that discovery was either full or
complete. Finally, Sambrano failed completely to establish any prejudice or detriment to her arising from
Bison’s seeking to compel arbitration. We therefore hold that Bison did not substantially invoke the litigation
process to Sambrano’s prejudice or detriment.
Conclusion
We conditionally grant the petition for mandamus in Cause No. 01-07-00003-CV. We are confident that the
trial court will vacate its order denying Bison’s motion to compel arbitration and will issue the writ only if the
trial court refuses to vacate its order in compliance with this opinion. We dismiss the interlocutory appeal in
Cause No. 01-07-00029-CV for lack of jurisdiction. Cf. In re D. Wilson Constr. Co., 196 S.W.3d at 783–84
(dismissing interlocutory appeal as moot because both TGAA and FAA applied). We deny all pending
motions and lift our stay order of January 8, 2007.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Alcala and Bland.