Opinion issued December 7, 2023

In The

Court of Appeals 

For The

First District of Texas 

————————————

NO. 01-23-00314-CV

———————————

GRGP, INC. AND ROSALIND NG, Appellants

V.

BLACK FOREST HOLDINGS, INC., 5711 BISSONNET, LP, 5713 

BISSONET, LP, AND AVI RON, Appellees

On Appeal from the 11th District Court

Harris County, Texas

Trial Court Case No. 2017-78562

MEMORANDUM OPINION

Appellants GRGP, Inc. and Rosalind Ng (collectively, GRGP) appeal from 

the trial court’s order denying their motion to compel arbitration in the suit filed 

against them by appellees Black Forest Holdings, Inc., 5711 Bissonnet, LP, 5713 

Bissonnet, LP, and Avi Ron (collectively, Black Forest). In two issues, GRGP 
2

contends that the trial court erred in failing to (1) compel arbitration because Black 

Forest did not show that GRGP’s conduct was inconsistent with the right to compel 

arbitration or that it prejudiced Black Forest as required to find waiver, and (2) allow 

GRGP to take back their purported waiver. We affirm.

Background

GRGP and Black Forest Holdings are the General Partners of two limited 

partnerships: 5711 Bissonnet, LP and 5713 Bissonnet, LP (the Partnerships). GRGP 

and Black Forest formed the Partnerships as property management entities for the 

purpose of purchasing, renting, and selling real property in and around Harris 

County, Texas.

GRGP and Black Forest each have a 0.5% interest in the Partnerships. Avi 

Ron, Black Forest’s President, and Rosalind Ng, GRGP’s President, also own an 

interest as limited partners. 

In November 2017, Black Forest sued GRGP, Ng, and Joshua Wohlstein, 

Ng’s husband,1asserting claims for breach of contract, breach of fiduciary duty, 

conspiracy, and aiding and abetting. Black Forest alleged that GRGP denied it access 

to the corporate books and records, despite repeated requests, and excluded Ron 

from business operations and decision making, in violation of the terms of the 

1 Wolstein is not a party to this appeal.
3

Limited Partnership Agreements (the Agreements). Black Forest sought a temporary 

injunction barring GRGP from managing or conducting business on behalf of the 

Partnerships and appointment of a receiver.2

GRGP answered asserting a general denial and several affirmative defenses. 

It further asserted that it was entitled to indemnification pursuant to the terms of the 

Agreements. GRGP amended its answer.

In July 2018, GRGP filed a pleading entitled “Plea to the Jurisdiction and 

Motion for Summary Judgment” challenging (1) the trial court’s subject matter 

jurisdiction, (2) Ron’s standing to bring claims relating to the Partnerships, and (3) 

Black Forest’s standing to bring claims on behalf of the Partnerships. Black Forest 

filed a response and motion for continuance.

In October 2018, GRGP counterclaimed asserting that Black Forest breached 

the Agreements, and it sought damages, declaratory relief, and enforcement of the 

Agreements’ indemnity provisions. GRGP amended its counterclaims and filed its 

third amended answer to Black Forest’s first amended petition. 

2

In 2012, GRGP sued Black Forest asserting claims for breach of fiduciary duty and 

breach of contract and sought an accounting, specific performance, and declaratory 

relief. GRGP alleged that Black Forest unilaterally entered into contracts for 

property management services with two companies owned by Ron in violation of 

the terms of the partnership agreements. After the parties entered a Rule 11 

agreement to settle the case, they jointly moved to dismiss the lawsuit in March 

2013.
4

In January 2020, GRGP filed a second motion for summary judgment on 

Black Forest’s breach of contract claim. It argued that the parties had entered into 

an agreement under which Black Forest had expressly delegated its general partner 

authority to GRGP, and that GRGP thereafter moved to dissolve the receivership. 

Black Forest responded that it had withdrawn its consent to GRGP’s control two 

years earlier, and it requested sanctions on the grounds that GRGP had moved for 

summary judgment on a delegation of authority it knew had been previously 

revoked.

In March 2021, Ng moved for final summary judgment on Black Forest’s 

claims against her for breach of fiduciary duty, conspiracy, and declaratory relief. 

Black Forest responded and moved for a continuance so that it could depose Ng. The 

trial court granted a continuance. 

In April 2022, the trial court conducted an evidentiary hearing on Black 

Forest’s renewed and supplemental motion for finding of spoliation and sanctions 

against GRGP. Following the hearing, the trial court entered an order and findings 

that GRGP had intentionally spoliated evidence by destroying a computer server 

containing evidence relevant to key issues in the case. The trial court ordered GRGP 

to pay Black Forest’s reasonable and necessary attorney’s fees and costs incurred as 

a result of the spoliation, the receiver’s fees and costs, and the fees charged by the 

receiver’s accountant. The trial court reserved ruling on a spoliation presumption 
5

and instruction until trial. The trial court later awarded $61,806.25 in attorney’s fees 

to Ron as well as the fees incurred by the receiver and the receiver’s accountant that 

were paid by the Partnerships.

In January 2023, GRGP filed an opposed motion to compel arbitration 

asserting that the parties had agreed that any disputes arising out of or relating to the 

Agreements would be resolved through binding arbitration.3 Black Forest responded 

arguing that GRGP had waived the right to arbitration, and it filed a cross-motion 

for sanctions. The trial court denied GRGP’s motion to compel arbitration on April 

17, 2023. This interlocutory appeal followed.

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 

3 Section 15.9(a) of the Agreements provides:

All disputes, differences or questions arising out of or relating to this

Agreement (including, without limitation, those as to the validity, 

interpretation, breach, violation or termination hereof ) will, at the written 

request of any partner, be finally determined and settled pursuant to 

arbitration at Houston, Texas by three arbitrators, one arbitrator to be 

appointed by the partner requesting arbitration, one arbitrator to be appointed 

by the adverse party, and a neutral arbitrator to be appointed by the first two 

arbitrators. The neutral arbitrator will be an attorney and will act as chairman. 

Any such arbitration may be initiated by any partner by written notice 

(“Arbitration Notice”) to the other party specifying the subject of the 

requested arbitration and appointing such partner’s arbitrator for such 

arbitration.
6

without reference to any guiding rules or principles. Cire v. Cummings, 134 S.W.3d 

835, 838–39 (Tex. 2004) (quoting 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) a valid arbitration 

agreement exists and (2) the claims in dispute fall within the scope of the agreement. 

In re Rubiola, 334 S.W.3d 220, 223 (Tex. 2011). “If the party 

seeking arbitration carries its initial burden, the burden then shifts to the party 

resisting arbitration to present evidence on its defenses to the arbitration agreement.” 

Williams Indus., Inc. v. Earth Dev. Sys. Corp., 110 S.W.3d 131, 134–35 (Tex. 

App.—Houston [1st Dist.] 2003, no pet.) (quoting Mohamed v. Auto Nation USA

Corp., 89 S.W.3d 830, 835 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (citing In

re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999))).

Waiver

A party who opposes the enforcement of a valid arbitration agreement4 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); Pounds 

4 Black Forest does not challenge on appeal the existence of a valid arbitration 

agreement or assert that its claims against GRGP do not fall within its scope.
7

v. Rohe, 592 S.W.3d 549, 554 (Tex. App.—Houston [1st Dist.] 2019, no pet.).

Because the law favors arbitration, this burden is a heavy one. G.T. Leach Builders,

LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 512 (Tex. 2015); Pounds, 592 S.W.3d 

at 554. A party may waive its right to arbitration either expressly or impliedly. G.T. 

Leach, 458 S.W.3d at 511. Waiver of arbitration may be implied from a party’s 

conduct, so long as the conduct is unequivocal. Courtright v. Allied Custom Homes, 

Inc., 647 S.W.3d 504, 516 (Tex. App.—Houston [1st Dist.] 2022, pet. denied) (citing 

Adams v. StaxxRing, Inc., 344 S.W.3d 641, 647 (Tex. App.—Dallas 2011, pet. 

denied)). 

When, as here, implied waiver is at issue, the party seeking to establish the 

waiver defense must show that (1) the party seeking arbitration substantially invoked 

the judicial process in a manner inconsistent with the right to compel arbitration and 

(2) this inconsistent conduct caused the nonmoving party to suffer detriment or 

prejudice. G.T. Leach, 458 S.W.3d at 511–12 (citing Perry Homes v. Cull, 258 

S.W.3d 580, 593–94 (Tex. 2008)). Whether a party waives its right to arbitration by 

substantially invoking the judicial process depends on the totality of the 

circumstances. See id. at 512; Perry Homes, 258 S.W.3d at 590. We decide the issue 

on a case-by-case basis taking into consideration a multitude of non-exclusive 

factors, including:

• how long the movant waited before moving to compel arbitration;
8

• the reasons for the movant’s delay;

• whether and when, during the period of delay, the movant knew of 

the arbitration agreement;

• how much discovery the movant conducted before moving to 

compel arbitration, and whether that discovery related to the merits;

• whether the discovery would be unavailable or useful in arbitration;

• whether the movant asked the court to dispose of claims on the 

merits;

• whether the movant asserted affirmative claims for relief in court;

• the extent of the movant’s engagement in pretrial matters related to 

the merits (rather than to arbitrability or jurisdiction);

• the time and expense the parties committed to the litigation;

• whether activity in court would be duplicated in arbitration; and 

• when the case is set to be tried.

G.T. Leach, 458 S.W.3d at 512 (citing Perry Homes, 258 S.W.3d at 590–92). 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, 551 S.W.3d at 116.

The party asserting waiver of arbitration must also prove that it suffered unfair 

prejudice because of the opposing party’s litigation conduct. See G.T. Leach, 458 

S.W.3d at 515. Such inherent unfairness may be manifested “in terms of delay, 
9

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 (quotation omitted). “Detriment or prejudice, in this context, 

refers to an ‘inherent unfairness caused by a party’s attempt to have it both ways by 

switching between litigation and arbitration to its own advantage.’” G.T. Leach, 458 

S.W.3d at 515 (quoting In re Citigroup Global Mkts., Inc., 258 S.W.3d 623, 625 

(Tex. 2008) (per curiam)) (internal quotation omitted); see Kennedy Hodges, L.L.P.

v. Gobellan, 433 S.W.3d 542, 545 (Tex. 2014) (per curiam). “[A] party should not 

be allowed purposefully and unjustifiably to manipulate the exercise of its arbitral 

rights simply to gain an unfair tactical advantage over the opposing party.” Perry

Homes, 258 S.W.3d at 597 (quoting In re Tyco Int’l Ltd. Sec. Litig., 422 F.3d 41, 46 

n.5 (1st Cir. 2005)). The nonmovant must show the fact of prejudice, but not its 

extent. Id. at 599.

Discussion

In its first issue, GRGP contends that the trial court erred in failing to compel 

arbitration because Black Forest did not show that GRGP’s conduct was inconsistent 

with the right to compel arbitration, or that its conduct prejudiced Black Forest. 

Black Forest responds that GRGP substantially invoked the judicial process in a 

manner inconsistent with the right to compel arbitration by (1) litigating for five and 

a half years without seeking arbitration; (2) filing counterclaims and defenses based 
10

on the Agreements; (3) filing three motions for summary judgment; (4) completing 

the entire discovery process; and (5) moving to compel arbitration only after the trial 

court found it had intentionally spoliated evidence. Black Forest argues that it would 

be prejudiced if forced to arbitrate. 

A. Substantial Invocation of Judicial Process

In examining whether GRGP substantially invoked the judicial process in a 

manner inconsistent with the right to arbitrate, we consider the factors enunciated in 

G.T. Leach.

1. Delay

Black Forest filed suit against GRGP on November 22, 2017, and GRGP did 

not move to compel arbitration until February 28, 2023—more than five years after 

suit was filed. Courts have found waiver based on significantly shorter periods of 

delay. See, e.g., Perry Homes, 258 S.W.3d at 596 (finding waiver where party 

delayed request for arbitration fourteen months after filing suit); Menger v. Menger, 

No. 01-19-00921-CV, 2021 WL 2654137, at *5 (Tex. App.—Houston [1st Dist.] 

June 29, 2021, no pet.) (mem. op.) (finding party’s six-month delay before 

requesting arbitration supported finding of waiver).

While delay, standing alone, does not constitute substantial invocation of the 

judicial process, see G.T. Leach, 458 S.W.3d at 515, the record shows more than

mere delay in this case. GRGP has offered no explanation for the delay. Nor does 
11

the record suggest a justifiable reason for the decision to wait so long to seek 

arbitration. GRGP was aware of the Agreements’ arbitration clause from the outset 

as it was a party to the Agreements, and the Agreements have been cited in, and 

attached as exhibits to, numerous pleadings and filings, including GRGP’s own 

counterclaims and summary judgment motions. However, rather than pursuing

arbitration, GRGP chose to file defenses and counterclaims and engage in significant

discovery and motion practice for more than five years, after all pretrial deadlines

had expired and the trial court found intentional spoliation, before seeking to compel

arbitration. See BBX Operating, LLC v. Am. Fluorite, Inc., No. 09-17-00245-CV, 

2018 WL 651276, at *6 (Tex. App.—Beaumont Nov. 16, 2017, no pet.) (mem. op.) 

(“[A] party who is aware of an arbitration clause, yet only files a motion to compel 

arbitration after having engaged in discovery and filed pleadings with the trial court, 

and after having received an adverse ruling from a trial court, has substantially 

invoked the litigation process and thereby waived its right to arbitrate.”); Prof’l 

Advantage Software Sols., Inc. v. W. Gulf Mar. Ass’n, 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).

We find GRGP’s delay in moving to compel arbitration supports a finding of 

waiver.
12

2. Discovery

The record shows that GRGP served forty-two requests for production, thirtynine requests for admission, fourteen interrogatories, and two deposition notices 

with subpoena duces tecum to third parties. GRGP conducted this discovery before 

the end of the discovery period on September 18, 2020 and well before it moved for 

arbitration on February 28, 2023. See Perry Homes, 258 S.W.3d at 596 (“[T]he 

record is nevertheless clear that most of the discovery in the case had already been 

completed before the Culls requested arbitration. The rule that one cannot wait until 

‘the eve of trial’ to request arbitration is not limited to the evening before trial; it is 

a rule of proportion that is implicated here.”); Adams, 344 S.W.3d at 649 (concluding 

that discovery was substantially completed where defendant initiated and conducted 

discovery, filed repeated motions for protection, and moved to compel arbitration 

only after discovery deadline had passed). 

We find GRGP’s discovery supports a finding of waiver.

3. Affirmative Relief and Pretrial Matters

The record reflects that GRGP sought affirmative relief against Black Forest 

in the trial court. It asserted amended counterclaims based on the Agreements and 

sought numerous declaratory judgments regarding the parties’ rights and obligations 

under them, including enforcement of the Agreements’ indemnity provisions. See 

Hogg v. Lynch, Chappell & Alsup, P.C., 480 S.W.3d 767, 785–86, 790–91 (Tex. 
13

App.—El Paso 2015, no pet.) (concluding evidence showing party sought 

affirmative relief by filing claim for declaratory judgment and seeking constructive 

trust on disputed monies was significant factor in determining whether defendant 

had substantially invoked judicial process). GRGP also filed three motions for 

summary judgment during the course of the litigation. In July 2018, GRGP filed a 

pleading entitled “Plea to the Jurisdiction and Motion for Summary Judgment”

challenging the trial court’s subject matter jurisdiction, Ron’s standing to bring 

claims relating to the Partnerships, and Black Forest’s standing to bring claims on 

behalf of the Partnerships. In January 2020, GRGP moved for summary judgment 

on Black Forest’s breach of contract claim and, in March 2021, Ng moved for final 

summary judgment on Black Forest’s claims against her for breach of fiduciary duty, 

conspiracy, and declaratory relief. The fact that the trial court did not rule on the 

summary judgment motions is not dispositive. See Perry Homes, 258 S.W.3d at 592 

(“Waiver involves substantial invocation of the judicial process, not just judgment 

on the merits.”); see also Hogg, 480 S.W.3d at 790 (“Contrary to Ms. Hogg’s 

argument, we do not believe it is necessary for a trial court to have entered a final 

judgment against the moving party before a waiver will be found.”).

GRGP also participated in pretrial matters related to the merits of their claims. 

As discussed above, GRGP filed numerous pleadings—original and amended 

answers, original and amended counterclaims, and three summary judgment 
14

motions—as well as participated in evidentiary hearings and conducted significant 

discovery.

We further note that GRGP did not move to compel arbitration until after the 

trial court entered rulings adverse to GRGP. On July 26, 2022, the trial court entered 

an order and findings that GRGP had intentionally spoliated evidence by destroying 

a computer server containing evidence relevant to key issues in the case. The trial 

court reserved ruling on a spoliation presumption and instruction until trial, leaving 

open the possibility of further adverse rulings. The trial court later awarded

$61,806.25 in attorney’s fees to Ron as well as the fees and costs incurred by the 

receiver and the receiver’s accountant that were paid by the Partnerships as a result 

of the spoliation. See Courtright, 647 S.W.3d at 521 (concluding that evidence 

showing defendants did not move to compel arbitration until after trial court entered 

rulings adverse to them, including granting motion for partial summary judgment in 

favor of plaintiffs, and five months before the parties’ agreed trial setting supported 

finding of waiver); Haddock v. Quinn, 287 S.W.3d 158, 180 (Tex. App.—Fort 

Worth 2009, pet. denied) (“Indeed, failing to seek arbitration until after proceeding 

in litigation to an adverse result is the clearest form of inconsistent litigation conduct 

and is inevitably found to constitute substantial invocation of the litigation process 

resulting in waiver.”).
15

The record thus demonstrates that GRGP sought affirmative relief and 

participated in pretrial matters, supporting a finding of waiver. 

4. Time and Money Spent in Litigation

In support of its response to GRGP’s motion to compel arbitration, Black

Forest attached the affidavit of its counsel, Andrew K. Meade. Meade attested that 

his firm had spent a total of 873.10 hours working on the matter and that Black Forest 

had incurred $279,613.00 in fees to date. See Adams, 344 S.W.3d at 651 (considering 

evidence showing that plaintiffs had incurred $110,000 in legal fees, which included 

$21,000 in fees solely for purpose of responding to defendant’s discovery requests 

and motions, in determining that defendant had waived his right to compel 

arbitration). This evidence supports a finding of waiver.

5. Duplication of Litigation Activity and Trial Setting

We also consider whether the activity in court would be duplicated in 

arbitration and whether and when the case had been set for trial. See G.T. Leach, 458 

S.W.3d at 512. Here, all pretrial deadlines had passed by the time GRGP moved to 

compel arbitration. Therefore, any activity in an arbitration proceeding would 

necessarily be duplicative of the activity that was previously conducted in litigation. 

Following a continuance in January 2023, trial of the case was set for October 16, 

2023, after more than five years of active litigation. The trial court did not issue a 

new docket control order, and, as noted above, all discovery and dispositive motion 
16

deadlines had passed. See Adams, 344 S.W.3d at 649 (noting that defendant moved 

to compel arbitration only after discovery deadline had passed and most discovery 

had been completed in finding waiver of right to compel arbitration) (citing Perry

Homes, 258 S.W.3d at 596 (“[T]he record is nevertheless clear that most of the 

discovery in the case had already been completed before the Culls requested 

arbitration. The rule that one cannot wait until ‘the eve of trial’ to request arbitration 

is not limited to the evening before trial; it is a rule of proportion that is implicated 

here.”)).

After considering the totality of the circumstances, we conclude that GRGP 

substantially invoked the judicial process in a manner inconsistent with the right to 

arbitrate and waived arbitration. See Hogg, 480 S.W.3d at 790 (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., Inc., 

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, 479

(Tex. App.—Corpus Christi–Edinburg 2007, orig. proceeding) (explaining that 
17

actions inconsistent with right to arbitrate may include “some combination of filing 

an answer, setting up a counterclaim, pursuing extensive discovery, moving for a 

continuance, and failing to timely request arbitration”).

B. Prejudice

Having determined that GRGP substantially invoked the judicial process, we 

next consider whether Black Forest established that it was unfairly prejudiced as a 

result of GRGP’s conduct.5 See G.T. Leach Builders, 458 S.W.3d at 515; Perry

Homes, 258 S.W.3d at 595. “Detriment or prejudice, in this context, refers to an 

‘inherent unfairness caused by a party’s attempt to have it both ways by switching 

between litigation and arbitration to its own advantage.’” G.T. Leach, 458 S.W.3d at 

515 (quoting In re Citigroup Global Mkts., 258 S.W.3d at 625); Kennedy Hodges,

433 S.W.3d at 545. 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.

5 The United States Supreme Court recently rejected any requirement of proof of 

prejudice as an “arbitration-specific” federal procedural rule in cases brought in 

federal court. See Morgan v. Sundance, Inc., 596 U.S. 411, 416–19 (2022).

Regardless of whether that ruling governs our analysis here, see Momentum Project 

Controls, LLC v. Booflies to Beefras LLC, No. 14-22-00712-CV, 2023 WL 

4196584, at *5 n.5 (Tex. App.—Houston [14th Dist.] Jun. 27, 2023, pet. filed) 

(describing issue as “unsettled” question), we nevertheless determine that Black 

Forest suffered prejudice as a result of GRGP’s conduct, as set forth below. 
18

As discussed above, Black Forest presented evidence that it had incurred

$279,613.00 in attorney’s fees in the course of the litigation by the time GRGP 

moved to compel arbitration. See Christus Spohn, 231 S.W.3d at 482 (concluding 

party had made clear showing of prejudice where, among other things, counsel 

testified by affidavit that client had incurred $60,000 to $70,000 in expenses to 

develop matter for trial and more than $350,000 in attorney’s fees). In addition to 

the added expense that litigation imposed on Black Forest, the record also shows 

prejudice to Black Forest because GRGP actively participated in litigation, suffered 

an adverse ruling when the trial court found it intentionally spoliated evidence, and 

is now seeking to switch to a new tribunal presumably in an attempt to undo the 

effects of the adverse ruling. As this Court noted in Pounds v. Rohe, 592 S.W.3d 549 

(Tex. App.—Houston [1st Dist.] 2019, no pet.), prejudice is shown when a party 

attempts to have it both ways by switching between litigation and arbitration after 

the results of the litigation prove unsatisfactory.

When a movant already has unsuccessfully sought a resolution on the 

merits, prejudice inheres in an attempt to start over in a different forum 

before a new decisionmaker. Pounds and Black are engaged in a type 

of unfair forum-shopping that, if condoned, would allow them to have 

it both ways—litigating on the merits first and then insisting on 

arbitration after the results of the litigation proved unsatisfactory.

Compelling arbitration at this point in the proceedings would allow 

Pounds and Black to undo the trial court’s adverse summary-judgment 

ruling and deprive Rohe of this favorable result. Damage to a party’s 

legal position of this sort suffices to show detriment or prejudice in the 

context of waiver of the right to arbitrate.
19

Id. at 558.

In sum, GRGP moved for arbitration more than five years after Black Forest 

filed suit, after GRGP engaged in extensive discovery and motion practice, and after 

the trial court entered an adverse ruling that GRGP intentionally spoliated evidence, 

awarded attorney’s fees and costs to Black Forest incurred as a result of the 

spoliation, and explicitly reserved ruling on a spoliation presumption and instruction 

until trial. See Courtright, 647 S.W.3d at 524 (finding defendants’ conduct resulted 

in substantial prejudice to plaintiffs and therefore supported finding of waiver where 

record showed trial court granted plaintiffs’ motion for partial summary judgment, 

entered adverse finding that one defendant’s actions were “illegal, oppressive, or 

fraudulent,” and one plaintiff’s motion for partial summary judgment remained 

pending). Reviewing the record before us, we conclude that GRGP’s conduct 

resulted in substantial prejudice to Black Forest. See Kennedy Hodges, 433 S.W.3d

at 545 (stating prejudice is “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 that same issue”). The trial court did not 

abuse its discretion in denying GRGP’s motion to compel arbitration. We overrule

GRGP’s first issue.
20

C. “Take Back” of Waiver

In its second issue, GRGP contends that even if the evidence supports a 

finding of waiver, the trial court erred in not following the Texas Supreme Court’s 

guidance in Perry Homes by allowing it to “take back” any waiver. This is so, it 

argues, because it moved to compel arbitration nearly nine months before trial. 

GRGP’s argument is unavailing.

In Perry Homes, the Texas Supreme Court addressed the defendants’ 

argument that it should reconsider requiring a showing of prejudice to find waiver 

by litigation conduct and instead apply the ordinary waiver rules governing contracts 

which require only “intentional relinquishment of a known right” without a 

requirement of prejudice. See Perry Homes, 258 S.W.3d at 594. After noting that its 

own precedent and that of a majority of federal circuits courts requiring a showing 

of prejudice, the Court declined the defendants’ invitation to reconsider the 

requirement. See id. Instead, it held that it would continue to require a showing of 

prejudice because waiver in the arbitration context is analogous to estoppel:

Under Texas law, waiver may not include a prejudice requirement, but 

estoppel does. In cases of waiver by litigation conduct, the precise 

question is not so much when waiver occurs as when a party can no 

longer take it back. As noted above, Texas estoppel law does not allow 

a party to withdraw a representation once the other party takes “action 

or forbearance of a definite and substantial character.” Using precisely 

the same terms, the Restatement does not allow a party to withdraw an 

option contract when the offeree has taken substantial action based upon 

it. In these contexts, prejudice is an element of the normal contract rules.
21

Thus, we agree with the courts below that waiver of arbitration requires 

a showing of prejudice.

Id. at 595. The “take it back” language upon which GRGP relies is not a rule 

allowing a party to undo a completed waiver. Rather, it is an explanation as to why 

arbitration waiver includes a prejudice requirement. Because the trial court did not 

err in not permitting GRGP to take back its waiver, we overrule GRGP’s second 

issue.

Conclusion

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

arbitration.

Amparo Monique Guerra

Justice

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