in Re Bison Building Materials, Ltd.

Opinion issued June 26, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00003-CV

IN RE BISON BUILDING MATERIALS, LTD., Relator

Original Proceeding on Petition for Writ of Mandamus

* * *

NO. 01-07-00029-CV

BISON BUILDING MATERIALS, LTD., Appellant

V.

TRACY SAMBRANO, Appellee

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 06CV0148

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).

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.

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.

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 representatibe arrived at the hospital and presented the

post-injury litigation waiver form to Sambrano.

Sambrano signed the form while

awaiting treatment that same day.

It is undisputed that Sambrano received benefits

under the Plan.

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.

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 .

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.

Howsam , 537 U.S. at 84–85, 123 S. Ct. at 592 ; In re Neutral Posture , 135 S.W.3d at

728 .

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.

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.

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.

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).

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. C onst . 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);

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).

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).

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.

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.

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.

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.

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.