Employer did not waive arbitration, Houston Court says

In Re Bison Building Materials No. 01-07-00003-CV (Tex.App.- Houston [1st dist.] June 26, 2008)(Radack) (opinion in pdf) (arbitration mandamus, employment, workplace injury, no waiver of right to arbitrate found) Trial Court: 212th District Court of Galveston County Judge: Hon. Susan Elizabeth Criss Dispostion: Mandamus granted to compel arbitration; interlocutory appeal dismissed in parallel proceeding Applying the Supreme Court's "totality-of-the-circumstances" language, Houston's First Court of Appeals compels arbitration by mandamus, saying employer did not waive right to arbitrate by moving for summary judgment. FROM THE OPINION: 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). [ DISTINGUISHING PERRY HOMES] 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.