In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-09-00313-CV
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IN RE YAMAHA MOTOR CORPORATION, U.S.A.,
YAMAHA MOTOR MANUFACTURING CORPORATION
OF AMERICA, and YAMAHA MOTOR CO., LTD.
In this petition for writ of mandamus, relators Yamaha Motor Corporation, U.S.A., Yamaha Motor Manufacturing Corporation of America, and Yamaha Motor Co., Ltd. contend the trial court abused its discretion by denying their motion to compel arbitration and to stay the underlying litigation.
The underlying action is a suit for wrongful death and products liability filed by real parties in interest Johnny Ray, individually and as representative of the estate of Foerst Eddie Ray, Deceased; Dawn Willis as Natural Mother of Foerst Eddie Ray, Deceased. Real parties filed suit on November 5, 2007, and the case is currently set for trial on August 17, 2009. Real parties in interest claimed that the Rhino utility vehicle their son was riding when he sustained fatal injuries was defectively designed and manufactured, and they asserted claims for products liability, strict liability, negligence, breach of warranty, and misrepresentation.
Relators assert that Johnny Ray's agreement to purchase the Rhino includes both an order form and a financing agreement. The financing agreement contains an arbitration clause. On June 1, 2009, relators filed a motion to compel arbitration and motion for stay. The real parties in interest filed a response, in which they contended, among other things, that relators had waived arbitration and had substantially invoked the judicial process. On June 30, 2009, the trial court signed an order denying relators' motion to compel arbitration and motion for stay, and relators then filed this original proceeding.
Mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when that abuse cannot be remedied by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). The Supreme Court has explained that a party may waive arbitration if it substantially invoked the judicial process and the party opposing arbitration suffered prejudice as a result. In re Bruce Terminix Co., 988 S.W.2d 702, 704 (Tex. 1998); see also Perry Homes v. Cull, 258 S.W.3d 580, 593-94 (Tex. 2008). Factors to consider in determining whether a party has waived arbitration include, among other things: whether the movant chose to file suit; how long the movant delayed before seeking arbitration; whether the movant knew of the arbitration clause all along; how much pretrial activity related to the merits rather than arbitrability or jurisdiction; how much time and expense had been incurred in litigation; whether the movant sought or opposed arbitration earlier in the case; whether the movant filed affirmative claims or dispositive motions; and when the case was to be tried. Perry Homes, 258 S.W.3d at 591-92.
In this case, substantial discovery has been completed, and the case is currently set for trial on August 17, 2009. Although relators averred that they did not learn of the arbitration clause until May of 2009, the trial court was not required to accept this assertion. The record suggests that the document was provided earlier in discovery, and given the nature of the document, the trial court may reasonably have concluded that relators were aware of the document all along. After reviewing the mandamus record and petition and considering the factors set forth in Perry Homes, we conclude that there is evidence which, if believed by the trial court, established that relators waived arbitration. Therefore, relators have not demonstrated an abuse of discretion by the trial court for which there is no adequate remedy by appeal. Accordingly, we deny the petition for writ of mandamus. Likewise, we deny relators' motion for temporary relief.
PETITION DENIED; MOTION FOR TEMPORARY RELIEF DENIED.
PER CURIAM
Opinion Delivered July 16, 2009
Before McKeithen, C.J., Gaultney and Kreger, JJ.