dissenting.
I vigorously, yet respectfully, dissent.
*29Mandamus v. Interlocutory Appeal
The majority holds this case invokes the Federal Arbitration Act and thus mandamus will lie in this case, yet acknowledges the contractual arbitration clause does not specifically invoke either the Texas Arbitration Act or the Federal Arbitration Act nor did the trial judge rule as to which act applied. Incredibly they “have no problem finding” this was a “transaction involving commerce” because Walmart is among the subcontractors listed in response to discovery requests.4 Mr. Nasr never raised this issue before the trial court nor did he rely upon this in his Petition for Mandamus. For this court to sua sponte utilize this to overrule a trial court runs contra to San Jacinto River Authority v. Duke, 783 S.W.2d 209, 210 (Tex.1990).5 See also Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.1997). Since the majority holds mandamus applies, they must necessarily hold the trial court abused its discretion. How can a trial judge abuse his discretion when it was never pointed out that the Federal Arbitration Act applied because Wal Mart was a subcontractor? The burden is on the party seeking to compel arbitration to establish its right to arbitrate under the Federal Arbitration Act. See EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 91 (Tex.1996); Ikon Office Solutions, Inc. v. Eifert, 2 S.W.3d 688, 696 (Tex.App.-Houston [14th Dist.] 1999). At the hearing on the motion to stay, Mr. Nasr provided no evidence other than the original contract. He did not meet his burden before the trial court. Therefore, mandamus does not lie and the interlocutory appeal should be the vehicle for consideration of this case.
Waiver Of Arbitration Rights
The underlying lawsuit was initiated on April 22, 1996, when the Rubios sought recourse against Nasr Corporation and Moe Nasr, Individually, for improper design and construction of the' Rubios’ home, as well as for a variety of common-law tort actions. The Rubios later amended their petition to include a statutory claim as well.
The Rubios contend Mr. Nasr waived his right to seek arbitration because: 1) notice was not timely given as a condition precedent to arbitration; 2) Nasr substantially invoked the judicial process; 3) Nasr engaged in acts constituting waiver; and 4) arbitration would prejudice the Rubios.
I need only address one of these contentions, i.e., that Mr. Nasr substantially invoked the judicial process. To substantially invoke the judicial process, a party must make a specific and deliberate act after suit has been filed that is inconsistent with its right to arbitrate, such as engaging in extensive discovery or requesting a jury trial. EZ Pawn Corp., 934 S.W.2d at 89; Nationwide of Bryan, Inc. v. Dyer, 969 S.W.2d 518, 522 (Tex.App.-Austin 1998, no writ).
This case had been on file for three years and nine months prior to Mr. Nasr’s filing of his petition for writ of mandamus. During the life of the case, Mr. Nasr engaged in extensive discovery. He propounded Interrogatories, Requests for Production, Requests for Admissions on Plaintiffs and Requests for Disclosures on Plaintiffs. Mr. Nasr responded to Plaintiffs’ Requests for Production, responded to Plaintiffs’ Requests for Disclosure and answered Plaintiffs’ Interrogatories. The *30parties have exchanged extensive correspondence regarding the case status, hearings, depositions, and Rule 11 agreements. The Rubios propounded extensive discovery on Mr. Nasr during this litigation and Mr. Nasr has responded and supplemented accordingly.
Mr. Nasr sought two trial continuances. Mr. Nasr requested a jury trial and paid the appropriate jury fee. Mr. Nasr filed his pre-trial statement designating fact and expert witnesses, proposed jury charge, and proposed exhibit list. Mr. Nasr filed a Motion to Compel Discovery. He also filed a motion for entry and inspection of the Plaintiffs’ premises. There have been three trial settings in this case. The first, November 29, 1999, was reset due to Mr. Nasr’s First Motion for Continuance. The second, January 24, 2000, (an agreed, preferential setting) was reset due to Mr. Nasr’s Second Motion for Continuance. The third was for March 6, 2000, which was avoided by filing the present action.
I am aware that Dyer and EZ Pawn further require an “independent showing of prejudice to the nonmovant.” Dyer, 969 S.W.2d at 522 (citing Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex.1995)). However, in Star Hill Co. v. Johnson Controls, Inc., 673 S.W.2d 282, 284 (Tex.App.-Beaumont 1984, no writ), this Court determined: “The length of time from the filing of the law suit until the demand for arbitration plus the appellant’s own actions clearly authorize the trial court to find appellant intentionally and impliedly waived its right to demand arbitration as a matter of law. Spain v. Houston Oilers, Inc., [593 S.W.2d 746, 748 (Tex.Civ.App.-Houston [14th Dist.] 1979, no writ) ]; 7 Tex. Jur. 3d Arbitration and Award section 18 (1980).” In Star Hill Co., the time lapse between the filing of the initial lawsuit and Star Hill’s filing of its motion for stay pending arbitration was only one year and seven months. 673 S.W.2d at 282-83. The operative time lapse in the instant case was three years and six months.
In Spain, the Houston Court held: “[T]he three year, eight month lapse between the date appellee filed its motion to dismiss and compel arbitration is an unreasonable delay and prejudicial per se.” Id. at 748. For us in the instant case to now say that appellees have failed to make an independent showing of prejudice verges on the ludicrous. The record before us, standing alone, speaks of prejudice.
It is abundantly clear from the record that Mr. Nasr’s desire to seek arbitration was nothing more than a long delayed afterthought.6 The record reveals that the dispute arose on January 24, 1996, when Mr. Nasr’s legal counsel responded to a letter from the Rubios’ counsel dated January 17, 1996. Mr. Nasr cannot maintain that his involvement in the litigation process was merely defensive, for indeed he aggressively pursued the process with specific deliberation.
In summary I would hold that mandamus does not lie, but if so, the trial court did not abuse its discretion in denying appellants’ motions. Therefore I would deny the writ. Furthermore, I would hold the trial court did not err at all and would affirm the order of the trial court.
. In the words of comedian Steve Martin ... EXCUUUUUSE ME!!!!
. This writer is profoundly familiar with the holding, having written the original case, Duke v. San Jacinto River Authority, 778 S.W.2d 123 (Tex.App.-Beaumont 1989), rev’d, 783 S.W.2d 209 (Tex.1990).
. I am mindful of our Texas Supreme Court’s opinion, In re Bruce Terminix Company, 988 S.W.2d 702, 704 (Tex.1998). In Terminix, the Court determined that "Terminix’s use of the judicial process was limited.... In this case, I find no such limitation on Mr. Nasr’s pursuit of the process.