Perry Homes v. Cull

How later courts described this case

• stating with regard to the right to seek arbitration that "waiver must be decided on a case-by-case basis, and that courts should look to the totality of the circumstances," recognizing "the difficulty of uniformly applying a test based on nothing more than the totality of the circumstances," but concluding that "there appears to be no better test for substantial invocation" (footnotes and internal quotation marks omitted)
• holding courts determined issues of waiver of arbitration by litigation conduct, discussing the Howsam case, and indicating that arbitrators generally determine matters that grow out of a dispute and bear on its final disposition but that courts generally decide issues as to whether the parties have submitted particular disputes to arbitration and whether there is a defense relating solely to the arbitration clause
• stating that "[t]he rule that one cannot wait until 'the eve of trial' to request arbitration is not limited to the evening before trial; it is a rule of proportion that is implicated here" and referencing Com-Tech Assocs. v. Computer Assocs. Int'l, Inc. , 938 F.2d 1574, 1576-77 (2d Cir. 1991), "in which arbitration was waived by request that did not come until 18 months after filing and 4 months before trial"
• holding that appellate courts may review trial court orders compelling arbitration on appeal from final judgment rendered upon confirmation of arbitration award and vacating an arbitration *82 award based on a ground raised in the motion to compel proceedings that is not listed in Texas Civil Practice and Remedies Code section 171.088

Written by the judges who cited it.