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applications to confirm arbitration awards | arbitration of workplace injury claims | waiver of right to enforce arbitration agreement
WAIVER OF RIGHT TO ARBITRATE
Waiver is "an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that
right." Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987), quoted in Jernigan v. Langley,
111 S.W.3d 153, 156-57 (Tex. 2003). A party waives an arbitration clause by substantially invoking the judicial
process to the other party's detriment. See In re Citigroup Global Mkts., Inc., 258 S.W.3d 623, 625 (Tex. 2008)
(orig. proceeding) (quoting Perry Homes v. Cull, 258 S.W.3d 580, 589-90 (Tex. 2008), cert. denied, 129 S. Ct.
952 (2009)). The reason for finding waiver under such circumstances lies in "the inherent unfairness caused
by `a party's attempt to have it both ways by switching between litigation and arbitration.'" Id. at 625 (quoting
Perry Homes, 258 S.W.3d at 597); cf. Keith v. Keith, 221 S.W.3d 156, 163 (Tex. App.-Houston [1st Dist.] 2006,
no pet.) (explaining that under invited error doctrine, appellant may not complain on appeal that trial court
granted appellant's own request). This reason equally applies when a party substantially invokes the arbitral
process to the other party's detriment.
In determining whether a party waived its right to arbitrate a dispute, courts have considered, among other
factors: (1) which party moved for arbitration; (2) how long the movant delayed before seeking arbitration; (3)
the amount of pretrial activity related to the merits rather than arbitrability or jurisdiction; (4) the amount of
discovery conducted; and (5) whether the movant sought judgment on the merits. See Perry Homes, 258
S.W.3d at 591-92.
WAIVER OF RIGHT TO ARBITRATION - TEXAS SUPREME COURT CASE
Supreme Court finds right to enforce arbitration was not waived
In Re Fleetwood Homes of Texas, LP, No. 06-0943, 257 S.W.3d 692 (Tex. June 20, 2008)(per curiam) (original
proceeding) (motion to compel arbitration, no waiver found, mandamus granted)
IN RE FLEETWOOD HOMES OF TEXAS, L.P. AND FLEETWOOD ENTERPRISES, INC.; from Walker County;
10th district (10-06-00312-CV, ___ SW3d ___, 10-25-06)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally
grants the petition for writ of mandamus. Per Curiam Opinion
Perry Homes v. Cull, No. 05-0882 (Tex. May 2, 2008)(Opinion by Scott A. Brister)(arbitration award in favor of
consumers overturned; court says home owners implicitly waived right to arbitrate by their litigation conduct)
Justice Brister delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice Wainwright, and
Justice Medina joined, and in which Chief Justice Jefferson, Justice Green, Justice Johnson, and Justice Willett
joined as to parts I-V.
Justice O'Neill delivered a concurring opinion.
Justice Johnson wrote an opinion concurring and dissenting in part, which was joined by Chief Justice Jefferson
and Justice Green
Justice Willett delivered an opinion concurring in part and dissenting in part.
TEXAS COURT OF APPEALS CASE LAW ON ARBITRATION WAIVER
In Re ReadyOne, No. 08-08-00221-CV (Tex.App.- El Paso, Aug. 19, 2009)
(arbitration mandamus granted, arbitration of workplace injury claims, no waiver of right to arbitrate)
MOTION OR WRIT GRANTED: Opinion by Chief Justice Chew
Before Chief Justice Chew, Justice McClure, The Honorable Gomez
08-08-00221-CV In Re: ReadyOne Industries, Inc. and Amalia Lopez
Appeal from of County
GRAND HOMES 96, L.P. & GRAND HOMES, INC. v. DAVID & DEBRA LOUDERMILK; from Denton County; 2nd
district (02-06-00030-CV, 208 S.W.3d 696, 11-09-06, pet. denied May 2, 2008)(arbitration award appeal,
This is an appeal from the confirmation of an arbitration award. The primary issue we address is whether
the trial court abused its discretion by compelling binding arbitration between all of the parties over the
objection of two of the defendants- now Appellants - Grand Homes 96, L.P. and Grand Homes, Inc. Appellants
claim that they did not receive notice that arbitration could be compelled concerning the claims of Appellees
David and Debra Loudermilk against them and that this lack of notice prevented them from raising the
defense of waiver. Because Appellants either were not deprived of the opportunity to present their waiver
defense to the arbitrator or as a matter of law cannot establish the Loudermilks' waiver of arbitration, we hold
that the trial court did not err by compelling arbitration over Appellants' objection. Because there is no record
from the arbitration proceedings, Appellants' other challenges to the arbitration award fail. Consequently,
we will affirm.