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
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
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.
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
[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
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.
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.
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.
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
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
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.
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
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
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.
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.
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
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
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.
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.
Panel consists of Chief Justice Radack and Justices Alcala and Bland.