Justice Harriet O'Neill's Concurring Opinion in Perry Homes v. Cull

Perry Homes v. Cull, No. 05-0882 (Tex. May 2, 2008)
See --> Court's Opinion In Perry Homes vs. Cull by Scott A. Brister
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.   

Opinion below:
Perry Homes v. Cull, 02-04-00052-CV, (Tex.App.- Fort Worth, Aug 31, 2005, pet . filed)(reversed; arbitration
award for home owners vacated)

Related terms: arbitration clause, arbitration award
Recent Texas arbitration case law decisions from the Texas Supreme
Court (Tex. 2007) | Arbitration appellate decisions from the Houston Courts of Appeals
consumer law | homeowner law  | residential and commercial construction law and litigation |
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Also see -->
Other Opinions by Tex. Sup. Ct. Justice Harriet O'Neill


O'Neill's Concurrence in Perry Homes homeowner arbitration case


Argued March 20, 2007

Justice O’Neill, concurring.

Most members of the Court agree that the Culls substantially invoked the litigation process before requesting arbitration; the
point of disagreement is whether Perry Homes adequately proved it suffered prejudice as a result. I join the Court’s opinion,
but write separately to note that I believe the proof required to demonstrate prejudice in any given case should be measured by
the degree to which the litigation process has been invoked. In some circumstances, a party’s invocation of the judicial
process may be so substantial that a court could presume the party resisting arbitration has been prejudiced and the right to
arbitration has been waived. In my view, such a presumption may easily be drawn on this record.


                                                          Harriet O’Neill