dissenting.
I respectfully dissent. I believe waiver of arbitration may occur when a party loses a motion to dismiss on the merits; in my view, that party may not then attempt to relitigate the issue by invoking arbitration. See Kramer v. Hammond, 943 F.2d 176, 179 (2d Cir.1991); see also In re Brace Terminix Co., 988 S.W.2d 702, 704 (Tex.1998) (“Thus, this is not a case in which a party who has tried and failed to obtain a satisfactory result in court then turns to arbitration.”); Southwind Group, Inc. v. Landwehr, 188 S.W.3d 730, 735-36 (Tex.App.-Eastland 2006, no pet.); Williams Indus, v. Earth Dev. Sys. Corp., 110 S.W.3d 131, 135 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (“Substantially invoking the judicial process can occur when the proponent of arbitration actively tried, but failed, to achieve a satisfactory result in litigation before turning to arbitration.”). A section 150.002 dismissal “may be with prejudice.” Tex. Civ. Prac. & Rem.Code Ann. § 150.002(d) (Vernon Supp. 2006). Richfield obviously incurred fees and costs to defeat the motion to dismiss. See generally E.C. Ernst, Inc. v. Manhattan Const. Co., 559 F.2d 268 (5th Cir.1977). A party should not be able to litigate an issue in the trial court, lose, and then seek a better outcome in arbitration.
I do not read In re Service Corporation International, 85 S.W.3d 171 (Tex.2002), as opposite. The Supreme Court stated in that case, “The filing of a motion to dismiss the claims of class members, almost all of whom are not subject to arbitration, did not waive arbitration.” Id. at 175. The Court later cited Subway Equipment Leasing Corporation, v. FoHe, 169 F.3d 324, 328 (5th Cir.1999), as holding that a party only invokes the judicial process by attempting to litigate a specific claim that it subsequently moves to arbitrate. See In re Serv. Corp., 85 S.W.3d at 176 & nl5. That is what relator has done here. I would deny the petition.