Mark Menger v. Sherry Menger

Opinion issued June 29, 2021

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-19-00921-CV
———————————
MAREK MENGER, Appellant
V.
SHERRY MENGER, Appellee

On Appeal from the 310th District Court
Harris County, Texas
Trial Court Case No. 2016-06434

MEMORANDUM OPINION

In this post-divorce enforcement case, Marek Menger (“Marek”) appeals the

trial court’s order denying his motion to compel arbitration. In two issues, Marek

contends the trial court erred in failing to (1) compel arbitration of the parties’

petitions for enforcement because the disputes at issue concern the interpretation and
performance of the parties’ divorce decree which are subject to arbitration, and (2)

appoint a substitute arbitrator when the appointed arbitrator was unable to serve. We

affirm.

Background

Sherry Menger (“Sherry”) filed an original petition for divorce in February

2016. Marek filed an original counterpetition for divorce and request for temporary

orders. In his counterpetition, Marek added Petro-Valve, Inc., the parties’

community business asset, as a third-party respondent. Sherry later filed a second

amended petition for divorce, asserting several claims against Marek, and Marek

filed a first amended counterpetition and request for temporary orders. These

amended pleadings constitute the live pleadings in the underlying divorce

proceeding.

Upon the parties’ agreement, the trial court appointed Jeffrey H. Uzick

(“Uzick”) as discovery master in the case. Uzick, who also began serving as the

parties’ mediator, conducted approximately six mediation sessions with the parties

in an effort to settle disputed property issues. In June 2017, Marek and Sherry

entered into a binding mediated settlement agreement (“MSA”), leaving for future

2
arbitration the division of certain property identified in Exhibit 1 to the MSA.1 The

MSA contains the following provision:

If any dispute arises with regard to the interpretation or
performance of this Agreement or any of its provisions, including the
necessity, form and substance of documents, the parties agree to try to
resolve the dispute by telephone conference or meeting with Jeffrey H.
Uzick, the Mediator who facilitated this settlement. . . . In the event an
agreement cannot be reached, the mediator shall act as the arbiter of the
issue and shall resolve the issue by binding arbitration.

After the parties executed the MSA, but before the trial court entered the final

divorce decree, Uzick conducted several arbitrations with the parties to resolve the

outstanding property issues listed in Exhibit A-1 to the MSA. Exhibit A-1 states in

relevant part:

The following issues shall be arbitrated by Jeff Uzick at a mutually
agreeable date and time:

Whether the following property is awarded to Marek as property of
ASAP:

Forklifts and Pallets;
Rolling Ladder;
Pallet Lift Equipment;
Pallet Sections;
Furniture in the accounting office;

Marek’s access to C-drive information prior to Marek’s departure from
Petrovalve;

Division of Wine in the wine cellar.

1
Exhibit A to the MSA is a chart listing Sherry and Marek’s properties, together with
their value, characterization as separate or community property, and to whom the
property belongs.
3
The referenced arbitrations resulted in three arbitration awards.

The trial court entered a final decree of divorce on February 27, 2018. Marek

then filed several motions, including a motion to vacate or, in the alternative, motion

to reconsider and motion for Rule 13 sanctions, and a motion for new trial, none of

which the trial court granted. On June 6, 2018, the trial court signed and entered an

amended final decree of divorce, incorporating the terms of the parties’ MSA (the

“Amended Decree”). The Amended Decree provides, in relevant part:

Clarifying Orders

Without affecting the finality of this Final Decree of Divorce,
this Court expressly reserves the right to make orders, necessary to
clarify and enforce this decree.

In the event there is a dispute concerning the interpretation or
performance of this Decree of Divorce, the parties are ORDERED to
attempt to resolve all such disputes through mediation, and failing
mediation, binding arbitration with Jeffrey H. Uzick.

Marek filed another motion for new trial and a second amended motion to

vacate or, in the alternative, motion to reconsider and motion for Rule 13 sanctions.

The trial court denied both motions. Marek appealed the denial of his motion for

new trial and later moved to dismiss the appeal. This Court granted the motion and

dismissed Marek’s appeal. See Menger v. Menger, No. 01-18-00848-CV, 2019 WL

758365 (Tex. App.—Houston [1st Dist.] Feb. 21, 2019, no pet.) (mem. op.).

On March 4, 2019, Sherry filed her original petition for enforcement, followed

by her first amended petition for enforcement on July 18, 2019, and second amended
4
petition for enforcement on October 10, 2019. Between March and April 2019,

Marek filed his petition for enforcement of property division, a motion for award of

undisclosed liabilities, and his first amended petition for enforcement of property

division. None of his pleadings included a request for arbitration. And neither did

Sherry’s pleadings.

Marek’s counsel then served discovery requests on Sherry, which included an

original request for production, a second request for production, interrogatories, and

a Rule 194 request for disclosures.2 Sherry responded to the discovery requests and

produced more than 1,375 pages of documents to Marek’s counsel. Upon request

for her deposition, Sherry also provided dates to Marek’s counsel, but did not receive

a response to the last set of dates provided. Sherry attested that the constant litigation

required her to expend many hours away from her business and that she had incurred

$77,107.13 in attorney’s fees between March and October 2019.

On July 23, 2019, Marek filed a notice of trial setting indicating that his first

amended petition for enforcement of property division was set for trial on September

18, 2019. On August 23, 2019—less than one month before the September 18, 2019

trial setting—Marek filed a motion for continuance, claiming neither party had

announced an unconditional ready for trial. He argued that he needed to conduct

2
Sherry states that Marek continued to discharge and retain new counsel throughout
the divorce and enforcement litigation, substituting counsel on eleven different
occasions.
5
additional or supplemental discovery prior to trial and further investigate the claims

and defenses of each of the parties. Following a hearing, the trial court denied his

motion for continuance.3

On September 12, 2019—the same day the trial court denied Marek’s motion

for continuance—Marek filed a motion to abate and motion to compel arbitration,

claiming for the first time that the parties’ disputes were subject to arbitration.

Marek contended that “[t]he parties previously agreed to arbitrate future disputes as

set forth in language contained in the parties’ Amended Decree of Divorce signed by

this Court on June 6, 2018.” He asserted that a controversy had arisen related to

“performance of the Amended Final Decree of Divorce regarding division of

property, performance of the indemnification provisions of the Amended Final

Decree of Divorce, and the amount of attorney’s fees owed to an indemnified party.”

According to Marek, the parties had not resolved the controversy and thus, the

parties’ disputes should be submitted to arbitration.

On October 3, 2019, Sherry’s attorney emailed Uzick informing him that

Marek’s attorney had informed her that Marek had filed a grievance against Uzick.

She inquired whether he was precluded from acting as arbitrator. Uzick responded:

Considering 1) the unique circumstances of this case, 2) the high
conflict and contentious nature of disputes involving the parties and
lawyers well past the divorce decree, and 3) the fact that a party chose

3
Marek also filed a motion for mediation, which the trial court denied on September
12, 2019. The motion is not part of the record before us.
6
 to file a grievance against me as a mediator/arbitrator (even though it
was summarily dismissed), I have decided that I will not act as an
arbitrator in this matter. Any rulings I would make would be the subject
of favoritism or payback which destroys the tenets of an agreed
arbitrator.

Both parties submitted briefing on the arbitration issue to the trial court.

Sherry filed her second amended response opposing Marek’s motion to abate and

motion to compel arbitration on October 17, 2019, and she filed her brief in

opposition to Marek’s request for an order to compel arbitration on October 18,

2019. On October 23, 2019, Marek filed his second amended petition for

enforcement, which included a motion for referral to mediation and arbitration.

The trial court held a hearing on Marek’s motion to compel arbitration, as well

as his motion to abate and motion to disqualify Sherry’s counsel. At the conclusion

of the hearing, the trial court denied all three motions. The trial court signed its order

denying the motions on November 5, 2019. Marek then filed this interlocutory

appeal.4

Discussion

Marek raises two issues on appeal. First, he contends the trial court erred in

failing to compel arbitration of the parties’ petitions for enforcement because the

petitions concern the performance and interpretation of the terms of the amended

4
A party may appeal from an order denying a motion to compel arbitration. TEX.
CIV. PRAC. & REM. CODE § 171.098(a)(1).
7
final decree of divorce, which are subject to arbitration. Second, he asserts that the

trial court erred in failing to appoint a substitute arbitrator.

A. Standard of Review and Applicable Law

We review an order denying a motion to compel arbitration for abuse of

discretion. Henry v. Cash Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018). A trial

court abuses its discretion if it acts in an arbitrary or unreasonable manner or acts

without reference to any guiding rules or principles. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). “We defer to the trial court’s

factual determinations if they are supported by evidence but review its legal

determinations de novo.” Henry, 551 S.W.3d at 115.

A party seeking to compel arbitration must establish that (1) there is a valid

arbitration agreement, and (2) the claims in dispute fall within the scope of the

agreement. In re Rubiola, 334 S.W.3d 220, 223 (Tex. 2011). The validity of an

arbitration agreement is a legal question subject to de novo review. See Jody Farms,

JV v. Altman Grp., Inc., 547 S.W.3d 624, 633 (Tex. 2018); J.M. Davidson, Inc. v.

Webster, 128 S.W.3d 223, 227 (Tex. 2003). Traditional contract principles apply in

determining whether a valid agreement to arbitrate exists. J.M. Davidson, 128

S.W.3d at 227; Amateur Athletic Union of the U.S., Inc. v. Bray, 499 S.W.3d 96, 102

(Tex. App.—San Antonio 2016, no pet.). When a trial court does not state a basis

for denying a motion to compel arbitration, we must uphold the trial court’s ruling

8
on any legal theory supported by the evidence. Worford v. Stamper, 801 S.W.2d

108, 109 (Tex. 1990); In Estate of Guerrero, 465 S.W.3d 693, 701 (Tex. App.—

Houston [14th Dist.] 2015, pet. denied).

B. Analysis

In his first issue, Marek contends the parties’ post-divorce petitions for

enforcement and related motions fall within the Amended Decree’s broad arbitration

clause governing performance and interpretation. That clause provides:

Clarifying Orders

Without affecting the finality of this Final Decree of Divorce,
this Court expressly reserves the right to make orders necessary to
clarify and enforce this decree.

In the event there is a dispute concerning the interpretation or
performance of this Decree of Divorce, the parties are ORDERED to
attempt to resolve all such disputes through mediation, and failing
mediation, binding arbitration with Jeffrey H. Uzick.

Marek argues that “both parties dispute performance, or that the decree has been

violated” and “the dispute involve[s] a competing view of interpretation of the

decree[.]” Sherry contends the trial court properly denied Marek’s motion to compel

arbitration because Marek waived any right to arbitration, and arbitration is

precluded by (1) res judicata, (2) Marek’s misconduct leading to Uzick’s

withdrawal, and (3) the application of traditional contract principles to the

circumstances of this case. Sherry asserts that each of these grounds negates the

9
existence of a valid and enforceable arbitration agreement. Because waiver of

arbitration is dispositive, we address Sherry’s waiver issue first .

Waiver

A party who opposes the enforcement of a valid arbitration agreement based

on the defense of waiver bears the burden of proving the defense. Royston, Rayzor,

Vickery & Williams, LLP v. Lopez, 467 S.W.3d 494, 499–500 (Tex. 2015).

Arbitration rights are contractual, and the law includes a strong presumption against

the waiver of those rights. Adams v. StaxxRing, Inc., 344 S.W.3d 641, 647 (Tex.

App.—Dallas 2011, pet. denied) (citing In re Bruce Terminix Co., 988 S.W.2d 702,

704 (Tex. 1998) (orig. proceeding) (per curiam)). A party may waive its right to

arbitrate either expressly or impliedly. G.T. Leach Builders, LLC v. Sapphire V.P.,

458 S.W.3d 502, 511 (Tex. 2015). Waiver of arbitration may be implied from a

party’s conduct, so long as the conduct is unequivocal. Adams, 344 S.W.3d at 647.

Waiver is decided on a case-by-case basis by assessing the totality of the

circumstances. See Kennedy Hodges, L.L.P. v. Gobellan, 433 S.W.3d 542, 545 (Tex.

2014); Perry Homes v. Cull, 258 S.W.3d 580, 590 (Tex. 2008); Pounds v. Rohe, 592

S.W.3d 549, 554 (Tex. App.—Houston [1st Dist.] 2019, no pet.). When, as here,

implied waiver is at issue, the party seeking to establish the waiver defense must

show that (1) the other party substantially invoked the judicial process in a manner

inconsistent with the right to compel arbitration, and (2) this inconsistent conduct

10
caused the nonmoving party to suffer detriment or prejudice. G.T. Leach, 458

S.W.3d at 511–12.

In determining whether a party has waived arbitration by substantially

invoking the judicial process, courts consider a multitude of non-exclusive factors,

including:

(1) whether the movant was plaintiff (who chose to file in court) or
defendant (who merely responded);

(2) how long the movant delayed before seeking arbitration;

(3) whether the movant knew about the arbitration clause during the
period of delay;

(4) any explanation the movant offered for the delay;

(5) how much discovery the movant conducted before trying to
compel arbitration and whether that discovery related to the
merits;

(6) how much time and expense has been incurred in litigation;

(7) whether the movant filed affirmative claims or dispositive
motions;

(8) whether the movant sought or opposed arbitration earlier in the
case;

(9) if discovery conducted would be unavailable or useful in
arbitration;

(10) whether activity in court would be duplicated in arbitration; and

(11) whether and when the case had been set for trial.

11
Perry Homes, 258 S.W.3d at 591–92; Pounds, 592 S.W.3d at 554. In general, no

single factor is dispositive. RSL Funding, LLC v. Pippins, 499 S.W.3d 423, 430

(Tex. 2016). Nor must all or most of these factors be present to support

waiver. See Perry Homes, 258 S.W.3d at 591. Courts look to the specifics of each

case. Henry v. Cash Biz, LP, 551 S.W.3d 111, 116 (Tex. 2018); Perry Homes, 258

S.W.3d at 591, 593.

Waiver of arbitration requires a showing of prejudice by the nonmoving

party. Perry Homes, 258 S.W.3d at 595. The nonmovant must show the fact of

prejudice, but not its extent. Id. at 599. Prejudice refers to the inherent unfairness

caused by “a party’s attempt to have it both ways by switching between litigation

and arbitration to its own advantage.” In re Citigroup Global Mkts., Inc., 258

S.W.3d 623, 625 (Tex. 2008) (orig. proceeding) (quoting Perry Homes, 258 S.W.3d

at 597). Such inherent unfairness may be manifested “in terms of delay, expense, or

damage to a party’s legal position that occurs when the party’s opponent forces it to

litigate an issue and later seeks to arbitrate that same issue.” Perry Homes, 258

S.W.3d at 597.

A. Substantial Invocation of Judicial Process

1. Delay

Marek was a petitioner and filed several pleadings in the trial court. He filed

his original and amended counterpetitions for enforcement of property division and

12
request for temporary orders in March and April 2019, respectively, and he added

Petro-Valve, Inc., the parties’ community business asset, as a third-party respondent.

Marek was also the movant in his motion for award of undisclosed liabilities filed in

March 2019. Marek did not request arbitration in any of these pleadings.

Marek waited more than six months before requesting arbitration, and he did

so less than one month prior to trial. He filed his first petition for enforcement in

March 2019 but did not request arbitration until he filed his motion to abate and

motion to compel arbitration on September 12, 2019. While this delay does not,

standing alone, constitute substantial invocation of the judicial process, see In re

Fleetwood Homes of Texas, L.P., 257 S.W.3d 692 (Tex. 2008), the record shows

more than mere delay.

Marek knew about the arbitration clause long before he filed his motion to

compel arbitration. He signed the parties’ MSA—which included the arbitration

clause—on June 28, 2017, and the Amended Decree, signed on June 6, 2018,

incorporated the MSA. See Pounds, 592 S.W.3d at 555 (noting that defendants were

aware of arbitration clause from outset where one defendant was party to agreement

and other was charged with carrying out agreement’s terms); Prof’l Advantage

Software Sols., Inc. v. W. Gulf Mar. Ass’n Inc., No. 01-15-01006-CV, 2016 WL

2586690, at *4 (Tex. App.—Houston [1st Dist.] May 5, 2016, no pet.) (mem. op.)

(noting party is presumed to know contents of agreement it signs). Marek was a

13
party and represented by counsel when both documents were finalized. Marek has

not offered any explanation for his delay in requesting arbitration. See Pounds, 592

S.W.3d at 555 (considering among factors weighing in favor of waiver fact that delay

was substantial, knowing, and unexplained, and that record did not “suggest a

sympathetic reason for [defendants’] decision to wait so long to seek arbitration”).

2. Discovery

Marek initiated discovery in the case. In her affidavit filed in opposition to

Marek’s motion to compel arbitration, Sherry attested that she responded to all of

Marek’s discovery requests, consisting of two requests for production of documents,

interrogatories, and a Rule 194 request for disclosure. Sherry produced 1,375 pages

of documents in response to Marek’s discovery requests. She also spent many hours

away from her business due to the constant litigation, and she incurred $77,107.13

in attorney’s fees between March and October 2019. Sherry also offered dates for

her deposition, but she never received a response from Marek’s counsel. See Adams,

344 S.W.3d at 649 (“How much litigation conduct will be ‘substantial’ depends very

much on the context; three or four depositions may be all the discovery needed in

one case, but purely preliminary in another.”) (quoting Perry Homes, 258 S.W.3d at

593).

14
 3. Affirmative Relief

Marek sought affirmative relief in his pleadings. In his original petition for

enforcement, Marek requested an award of money judgment against Sherry in the

amount of $245,047.81. He also requested that Sherry pay his attorney’s fees and

be held in contempt, jailed, and fined for violating the Amended Decree. In his

motion for award of undisclosed liabilities, Marek also requested that four loans

taken against two life insurance policies, totaling $245,047.81, be considered

undisclosed liabilities and awarded to Sherry. He further requested that Sherry be

ordered to repay each loan, indemnify Marek for any failure to discharge the

liabilities, and pay Marek his attorney’s fees.

In his first amended petition for enforcement of property division, Marek

requested an award of money judgment in the amount of $245,047.81, that Sherry

be held in contempt and fined, and that she pay his attorney’s fees. And in his second

amended petition for enforcement, Marek requested that he be awarded money

judgments against Sherry totaling approximately $403,906.83, that Sherry pay his

attorney’s fees, that she be held in contempt, jailed, and fined for failing to comply

with the Amended Decree, and that she subsequently be placed on community

supervision. Adams, 344 S.W.3d at 650 (concluding that evidence supported finding

that defendant substantially invoked judicial process where, among other things,

15
record showed that he asked trial court to find plaintiff in contempt for allegedly

violating temporary injunction).

4. Trial Settings and Continuances

Marek filed a notice of trial setting, setting his petition for enforcement for

trial on September 18, 2019. He also filed a motion to disqualify attorneys in which

he requested the disqualification of Sherry’s counsel.

The record reflects that Marek filed his motion to abate and motion to compel

arbitration on September 12, 2019, the same day the trial court denied his motion for

a continuance of the trial setting and his motion to mediate, and a mere six days

before the September 18, 2019 trial setting. Notably, in his motion for continuance,

Marek asserted that he needed to conduct additional and supplemental discovery

prior to trial and investigate the claims and defenses of each of the parties. In short,

Marek sought affirmative relief from the trial court until the trial court denied his

motion for continuance and he faced a fast-approaching trial setting, when he

inexplicably switched course and asked the court to enter an order compelling the

parties to arbitrate their disputes for the first time.

Marek argues that a finding of waiver of arbitration is extremely rare and

cautions that “almost every single court following Perry Homes to find waiver has

resulted in a reversal on appeal.”5 While this may be true, Marek ignores the

5
Marek does not cite the post-Perry Homes decisions on which he relies.
16
requirement that we make our determination on a case-by-case basis by assessing

the totality of the circumstances. See Kennedy Hodges, 433 S.W.3d at 545; Perry

Homes, 258 S.W.3d at 590; see also Nw. Constr. Co. v. Oak Partners, L.P., 248

S.W.3d 837, 849 (Tex. App.—Fort Worth 2008, pet. denied) (“Northwest focuses

on its various activities in the suit in isolation; however, when viewed together, all

of Northwest’s actions in the suit indicate an intention to avail itself of the judicial

process.”). After considering the totality of the circumstances in this case, we

conclude that Marek substantially invoked the judicial process. See Hogg v. Lynch,

Chappell & Alsup, P.C., 480 S.W.3d 767, 790 (Tex. App.—El Paso 2015, no pet.)

(holding arbitration waived when party participated in litigation “only up until the

point that she received an adverse ruling from the district court and was faced with

the possibility of having the court impose case-crippling sanctions.”); Okorafor v.

Uncle Sam & Assocs., 295 S.W.3d 27, 40 (Tex. App.—Houston [1st Dist.] 2009,

pet. denied) (concluding defendant substantially invoked judicial process because

she pursued aggressive litigation strategy through amended pleadings that sought

affirmative relief, and abruptly switched to arbitration strategy when facing looming

deadline to respond to discovery requests); In re Christus Spohn Health Sys. Corp.,

231 S.W.3d 475, 478–79 (Tex. App.—Corpus Christi–Edinburg 2007, orig.

proceeding) (explaining that actions inconsistent with right to arbitrate may include

“some combination of filing an answer, setting up a counterclaim, pursuing

17
extensive discovery, moving for a continuance, and failing to timely request

arbitration”) (citing Cent. Nat’l Ins. Co. of Omaha v. Lerner, 856 S.W.2d 492, 494

(Tex. App.—Houston [1st Dist.] 1993, orig. proceeding)).

B. Prejudice

In determining whether Marek’s substantial invocation of the judicial process

constitutes a waiver of his arbitration rights, we also must determine whether Sherry

showed prejudice. Perry Homes, 258 S.W.3d at 595. In this context, “prejudice

refers to the inherent unfairness in terms of delay, expense, or damage to a party’s

legal position that occurs when the party’s opponent forces it to litigate an issue and

later seeks to arbitrate the same issue.” Id. at 597. Prejudice is more easily shown

when a party delays his request for arbitration and in the meantime engages in

pretrial activity inconsistent with an intent to arbitrate. Id. at 600.

Sherry responded to numerous discovery requests from Marek and produced

more than 1,375 pages of documents in response to those requests.6 Additionally, in

6
Sherry argues that “Marek’s extensive use of the judicial discovery process has
given him access to documents and information regarding the merits of these
matters well beyond what he would have received in arbitration.” Sherry does not
explain the basis for her assertion and neither her discovery responses nor the
documents she produced are part of the record before us. However, the fact that
Sherry did not prove that the discovery incurred during litigation (and the attendant
costs) would not have occurred in arbitration does not negate a conclusion that she
was prejudiced by Marek’s failure to timely invoke the arbitration clause while
simultaneously actively obtaining discovery under the rules of civil procedure.
See Adams v. StaxxRing, Inc., 344 S.W.3d 641, 652 (Tex. App.—Dallas 2011, pet
denied); see also Perry Homes v. Cull, 258 S.W.3d 580, 599 (Tex. 2008) (“This
confuses proof of the fact of prejudice with proof its extent; the Defendants had to
18
his motion for continuance filed less than one week before the date of trial, Marek

indicated his intent to request additional discovery and investigate the parties’ claims

and defenses. Sherry testified that she spent many hours away from her business to

attend to the litigation matters and that she incurred $77,107.13 in attorney’s fees

between March and October 2019. See Garg v. Pham, 485 S.W.3d 91, 107 (Tex.

App.—Houston [14th Dist.] 2015, no pet.) (stating factor to consider in

determination of waiver is “how much pretrial activity related to the merits rather

than arbitrability or jurisdiction and how much time and expense has been incurred

in litigation”); Adams, 344 S.W.3d at 651 (concluding plaintiff showed prejudice

resulting from defendant’s failure to invoke his arbitration rights where, among other

things, record showed that plaintiff lost “hundreds of hours” of income-producing

activity and needed to hire an accounting person to assist her business with

production in responding to discovery requests); Christus Spohn, 231 S.W.3d at 482

(considering personal prejudice suffered by party as result of delay).

The record reflects Marek engaged in a type of unfair forum shopping to

unwind a property division order he now finds unsatisfactory. By filing a motion to

compel arbitration after seeking extensive affirmative relief from the trial court and

insisting on expensive discovery production from Sherry, Marek now seeks to

show substantial invocation that prejudiced them, not precisely how much it all
was.”) (emphasis in original).

19
arbitrate the parties’ underlying binding MSA and Amended Decree to Sherry’s

detriment. By doing so, he now purports to have a right to arbitrate his request that

the award of certain life insurance policies to him must be modified to include an

additional $254,047.81 award, an issue Marek already submitted to the trial court

via his petitions for enforcement, and later through the filing of multiple motions

seeking affirmative relief, including a request for mediation and to continue the trial

date, which the trial court denied or that were overruled by operation of law. To

condone this strategy would allow Marek to have it both ways, that is, “litigating on

the merits first and then insisting on arbitration after the results of the litigation

proved unsatisfactory.” Pounds, 592 S.W.3d at 558.

Marek’s substantial invocation of the judicial process shows prejudice on the

face of the record because he forced Sherry to defend against his enforcement actions

in the trial court, and further to produce discovery and prepare for an impending trial

setting. Reviewing the record before us, we conclude Sherry presented sufficient

evidence of prejudice.

Because Marek substantially invoked the judicial process to the detriment and

prejudice of Sherry, we conclude that Marek waived his right to arbitration.7

7
Because we conclude that Marek waived his right to arbitration, we do not reach his
arguments that the trial court erred by failing to (1) compel arbitration because the
parties’ petitions for enforcement fall within the scope of the arbitration clause, and
(2) appoint a substitute arbitrator.
20
 Conclusion

We affirm the trial court’s order denying Marek’s motion to compel

arbitration.

Veronica Rivas-Molloy
Justice

Panel consists of Justices Countiss, Rivas-Molloy, and Guerra.

21