Relator=s Motion for Rehearing Granted, Opinion of October 16, 2003, Withdrawn, Relief Denied and Memorandum Opinion on Rehearing issued April 8, 2004.
In The
Fourteenth Court of Appeals
____________
NO. 14-03-01056-CV
____________
IN RE KEITH and MARY COHN
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Cause No. 03-22133
M E M O R A N D U M O P I N I O N O N R E H E A R I N G
On October 16, 2003, this Court issued an opinion denying Relators= request for mandamus relief ordering the trial judge to rescind its order requiring the parties to arbitrate the underlying lawsuit. On rehearing, Relators have asked us to state our reasons for denying the petition for writ of mandamus. We grant the motion and state below our reasons for denying the relief requested.
Relators asked for mandamus relief, claiming that their suit against the defendant, Casa Investments, Inc. D/b/a/ Casa Builders, should not be ordered to arbitration. They claim Casa waived its right to arbitration because Casa brought an earlier suit against relators for slander and injunctive relief without asking that the claims be arbitrated. This first suit was dismissed for want of prosecution after the trial court denied the injunctive relief Casa requested.[1]
We have denied relator=s request for mandamus relief for several reasons. First, the arbitration clause is broad and this litigation clearly falls under its scope. See, Menna v. Romero, 48 S.W.3d 247, 250 (Tex. App. B San Antonio 2001, pet dism=d w.o.j.). Second, as we explain briefly below, relators have not shown that Casa has waived its right to rely on the arbitration clause.
Courts apply a two prong test to determine if a party has waived its right to compel arbitration: A(1) did the party seeking arbitration substantially invoke the judicial process; and (2) did the opposing party prove that it suffered prejudice as a result?@ Id. at 251 (citing Prudential Securities, Inc. v. Marshall, 909 S.W.2d 896, 898 (Tex. 1995). Whether a party has waived its right to arbitration is a question of law. In re Bruce Terminix, 988 S.W.2d 702, 704 (Tex. 1998). A strong presumption against waiver exists. Id. Furthermore, waiver must be intentional. EZ Pawn Corp. V. Mancias, 934 S.W.2d 87, 89 (Tex. 1996). Implying waiver from a party=s actions is appropriate only if the facts demonstrate that the party seeking to enforce arbitration intended to waive its arbitration right. Id. Thus, the party seeking to prove waiver bears a Aheavy burden of proof,@ and any doubts regarding waiver must be resolved in favor of arbitration. In re Bruce Terminix, 988 S.W.2d at 705.
We conclude that Relators have met neither prong of the test. We are not convinced by Relators= argument or case law on prong one of the test, and, Relators do not even attempt to argue that they have met prong two of the test, i.e. that they were prejudiced because of the earlier suit.
For these reasons, we deny the mandamus relief requested.
/s/ Wanda McKee Fowler
Justice
Petition denied and Memorandum Opinion filed April 8, 2004.
Panel consists of Justices Yates, Hudson, and Fowler.
[1] In this first suit, Casa asked that the relators be ordered to remove signs and banners from their home and cars which Casa claimed contained slanderous statements about it.