AFFIRM and REMAND; and Opinion Filed November 18, 2013.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-13-00446-CV

IDEAL ROOFING, INC. AND IDEAL ROOFING, L.L.P., Appellants

V.

MIKE ARMBRUSTER AND NERY ARMBRUSTER, Appellees

On Appeal from the County Court at Law No. 5

Dallas County, Texas

Trial Court Cause No. CC-11-03420-E

MEMORANDUM OPINION

Before Justices Bridges, Fillmore, and Lewis 

Opinion by Justice Fillmore

In this interlocutory appeal, appellants Ideal Roofing, Inc. (Ideal Inc.) and Ideal Roofing, 

L.L.P. (Ideal L.L.P.) assert the trial court erred by denying their motion to compel arbitration of 

the claims of appellees Mike Armbruster and Nery Armbruster. We affirm the trial court’s order 

denying appellees’ motion to compel arbitration.

Background

On June 25, 2003, Mike Armbruster entered into a Roof Contract with Ideal Inc. for 

installation of a roof on appellees’ residence in Dallas, Texas. The Roof Contract contains the 

following arbitration provision:
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Upon the request of any party, made before or after the institution of any legal 

proceeding, any dispute, claim, or controversy of any kind (whether in contract or 

in tort [sic] statutory or common law, legal or equitable) arising between the 

parties in any way out of pertaining to or in connection with this Agreement 

(“Dispute”) shall be resolved by binding arbitration. Any arbitration hereunder 

shall be conducted in accordance with the terms of this Agreement and, to the 

extent not inconsistent, with the Commercial Arbitration Rules of the American 

Arbitration Association, and (to the maximum extent applicable) the Federal 

Arbitration Act. Judgment upon the award rendered by the arbitrators may be 

entered in any court having jurisdiction. All statutes of limitations that would 

otherwise be applicable shall apply to any arbitration proceeding.

On September 1, 2004, an Asset Purchase Agreement was entered into by Ideal Inc. and 

Ideal L.L.P. which provided for the sale of Ideal Inc. assets to Ideal L.L.P. 

According to appellees’ pleadings, in “late 2009,” appellees noticed the exterior of their 

residence was deteriorating. Inspections were subsequently performed on the roof of the 

residence, and it was “concluded” the roof was improperly installed resulting in water damage to 

the residence.

Appellees filed suit against Ideal Inc. and Ideal L.L.P. for damages they claim arise from 

the improperly installed roof. Ideal Inc. and Ideal L.L.P. filed a motion to compel arbitration of 

appellees’ claims. The trial court denied the motion to compel arbitration. Ideal Inc. and Ideal 

L.L.P. filed this interlocutory appeal of the trial court’s denial of their motion to compel 

arbitration.

Waiver of the Arbitration Agreement

In a single issue, Ideal Inc. and Ideal L.L.P. assert that, because a valid arbitration 

agreement exists that is applicable to appellees’ pleaded claims, the trial court erred in denying 

their motion to compel arbitration.1

 1 On appeal, appellants do not assert the trial court erred by failing to grant a stay of proceedings. This Court signed an order staying any 

trial setting in this case pending resolution of this interlocutory appeal.
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The arbitration provision contained in the Roof Contract indicates any arbitration shall be 

conducted in accordance with the Federal Arbitration Act. See In re Advance PCS Health, L.P., 

172 S.W.3d 603, 605–06 & n.3 (Tex. 2005) (orig. proceeding) (per curiam) (FAA may govern a 

written arbitration clause enforced in Texas court if parties have expressly contracted for FAA’s 

application); In re ReadyOne Indus., Inc., 294 S.W.3d 764, 769 (Tex. App.—El Paso 2009, orig. 

proceeding) (if parties expressly choose for arbitration agreement to be governed by FAA, 

agreement should be enforced regardless of parties’ nexus to interstate commerce). When a 

party asserts a right to arbitrate under the FAA, the question of whether the dispute is subject to 

arbitration is determined under federal law. Prudential Secs. Inc. v. Marshall, 909 S.W.2d 896, 

899 (Tex. 1995). As a matter of federal law, any doubts concerning the scope of arbitrable issues 

are resolved in favor of arbitration, whether pertaining to the construction of the contract or a 

defense to arbitrability. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 

24–25 (1983). 

In general, a party seeking to compel arbitration under the FAA must establish (1) the 

existence of a valid, enforceable arbitration agreement and (2) that the claims at issue fall within 

that agreement’s scope. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) 

(orig. proceeding); see also J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003) 

(although there is strong presumption favoring arbitration, presumption arises only after party 

seeking to compel arbitration proves a valid arbitration agreement exists). The party seeking to 

avoid arbitration then bears the burden of raising an affirmative defense to enforcement of the 

otherwise valid arbitration provision. In re AdvancePCS Health, 172 S.W.3d at 607.
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Substantially Invoking the Judicial Process

Appellees concede on appeal that “all parties are bound by the arbitration clause.”2 

Because appellees do not contest appellants have established the existence of a valid and 

enforceable arbitration agreement, the burden shifted to appellees to prove a defense against 

enforcing the arbitration agreement. See id. In defense to appellants’ motion to compel 

arbitration, appellees asserted before the trial court, as they do on appeal, that appellants waived 

their contractual arbitration rights by substantially invoking the judicial process to the detriment 

of appellees. As the parties claiming waiver, appellees had the heavy burden of establishing 

appellants substantially invoked the judicial process. See See In re Bruce Terminix Co., 988 

S.W.2d 702, 704 (Tex. 1998) (orig. proceeding); Adams v. StaxxRing, Inc., 344 S.W.3d 641, 648 

(Tex. App.—Dallas 2011, pet. denied).

A party may waive contractual arbitration rights by substantially invoking the judicial 

process to the detriment of the other party. Perry Homes v. Cull, 258 S.W.3d 580, 589–90 (Tex. 

2008). Waiver of contractual arbitration rights is a question of law that this Court reviews de 

novo. Id. at 598; see also Small v. Specialty Contractors, Inc., 310 S.W.3d 639, 644 (Tex. 

App.—Dallas 2010, no pet.). Because public policy favors resolving disputes through 

arbitration, the law imposes a strong presumption against the waiver of contractual arbitration

rights. See In re Bruce Terminix Co., 988 S.W.2d at 704; see also In re Vesta Ins. Group, Inc., 

192 S.W.3d 759, 763 (Tex. 2006) (orig. proceeding) (per curiam) (there is a strong presumption 

against waiver under the FAA). When presented with questions of waiver, we should resolve 

any doubts about wavier in favor of arbitration. Moses H. Cone Mem’l Hosp., 460 U.S. at 24–

25. The standard for determining waiver is the same under federal and state law. See Holmes, 

 2 Because appellees concede there is a valid and enforceable arbitration agreement binding all parties, we need not address appellants’ “subissues” of whether the arbitration agreement is valid and enforceable, whether appellee Nery Armbruster is bound by the arbitration agreement, 

and whether Ideal L.L.P. as successor-in-interest to Ideal Inc. may enforce the arbitration agreement.
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Woods & Diggs v. Gentry, 333 S.W.3d 650, 654 (Tex. App.—Dallas 2009, no pet.). Waiver may 

be implied from a party’s conduct, so long as that conduct is unequivocal. Perry Homes, 258 

S.W.3d at 593. In “close cases, the ‘strong presumption against waiver’ should govern.” Id. 

(quoting In re D. Wilson Constr. Co., 196 S.W.3d 774, 783 (Tex. 2006) (orig. proceeding)).

 In determining whether appellees met their burden, we must examine the case-specific 

facts and look to the totality of the circumstances. See id. at 591 (whether a party has waived 

arbitration must be decided on a case-by-case basis, based upon an examination of the totality of 

the circumstances). The judicial process is substantially invoked when the party seeking 

arbitration has taken specific and deliberate actions, after the filing of the suit, that are 

inconsistent with the right to arbitrate or has actively tried, but failed, to achieve a satisfactory 

result through litigation before turning to arbitration. In re Vesta Ins. Group, Inc., 192 S.W.3d at 

763. Factors considered in determining whether a movant has substantially invoked the judicial 

process include when the movant knew of the arbitration clause, how much discovery has been 

initiated and who initiated it, the extent to which discovery related to the merits rather than 

arbitrability or standing, how much of the discovery would be useful in arbitration, whether the 

movant sought judgment on the merits, and whether the movant sought to compel arbitration on 

the “eve of trial.” Perry Homes, 258 S.W.3d at 590–92.

The procedural history of the lawsuit may be summarized as follows:

• May 17, 2011 – Appellees filed their original petition asserting claims for breach of 

contract, breach of warranty, negligence, Deceptive Trade Practices Act violations, 

negligent hiring, and negligent supervision against Ideal Inc. and Ideal L.L.P. The 

petition included a Request for Disclosures.

• June 14, 2011 – Ideal L.L.P. answered the lawsuit. Ideal L.L.P. was represented by 

attorney William W. Rucker (Rucker).

• June 17, 2011 – Ideal Inc. answered the lawsuit. Ideal Inc. was represented by attorney 

B. Bruce Johnson (Johnson).

• June 17, 2011 – Ideal L.L.P. served its responses to appellees’ request for disclosures.
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• June 17, 2011 – Rucker forwarded correspondence to appellees’ attorney indicating that 

Ideal L.L.P. is contractually committed to Ideal Inc. to make any necessary warranty 

repairs to appellees’ roof. The correspondence includes the following:

We thought we had identified the warranty repair items when we last year 

sent Aspenmark Roofing Solutions to look at your clients’ roof. . . . I 

noticed that you have retained two experts to inspect the roof. Assuming 

they have different opinions than Aspenmark, I would like to take their 

deposition or, better still, have them meet with one of our representatives 

at [appellees’] residence to review what they consider to be warranty 

repairs.

• September 2, 2011 – Ideal Inc. filed an amended answer in which it asserted an 

affirmative defense that Ideal L.L.P. is the only potential liable party based on the Asset 

Purchase Agreement between Ideal Inc. and Ideal L.L.P. Further, Ideal Inc. filed a 

counterclaim asserting entitlement to attorney’s fees incurred in its defense.

• September 2, 2011 – Ideal Inc. served responses to appellees’ request for disclosures.

• September 2, 2011 – Ideal Inc. served responses to Ideal L.L.P.’s request for disclosures.

• October 24, 2011 – Rucker forwarded correspondence to Johnson and appellees’ 

attorney. The correspondence provides:

We have discovered that the [Roof Contract] between Ideal Roofing, Inc. 

and [appellees] contain [sic] provisions for binding arbitration. Although 

my client is not a party to the contract, Ideal Roofing, LLP would certainly 

join in an effort to arbitrate the dispute. . . . In the meantime, we have 

outstanding discovery (interrogatories and RFP’s) to [appellees] that are 

due. Please advise if the responses are forthcoming.3

 

• October 27, 2011 – Appellees served their responses to Ideal Inc.’s and Ideal L.L.P.’s 

requests for disclosures. 

• October 2011 – Appellees responded to Interrogatories served by Ideal L.L.P.

• October 27, 2011 – Appellees served their first requests for production on Ideal Inc. and 

Ideal L.L.P.

• November 8, 2011 – Ideal L.L.P. filed a motion for summary judgment asserting 

entitlement to judgment as a matter of law because appellees have no privity of contract 

with Ideal L.L.P. and Ideal L.L.P. did not install the allegedly defective roof.

 3 At the hearing of Ideal Inc.’s and Ideal L.L.P.’s motion to compel, the attorney for those parties advised the court that Ideal L.L.P. served 

a request for disclosure, request for production and interrogatories on appellees. 
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• November 14, 2011 – Appellees filed their first amended petition and requests for 

disclosures.

• November 23, 2011 – A notice of a January 13, 2012 hearing on Ideal L.L.P.’s motion 

for summary judgment was filed.

• November 23, 2011 – Ideal Inc. responded to appellees’ first request for production. 

Ideal Inc. objected to producing a copy of the Asset Purchase Agreement between Ideal 

Inc. and Ideal L.L.P.

• November 28, 2011 – A letter agreement signed by appellees’ attorney extended Ideal 

Inc.’s deadline for responding to appellees’ request for production.

• December 8, 2011 – Ideal L.L.P. served its responses to appellees’ request for 

production.

• December 16, 2011 – Johnson filed a motion to withdraw as counsel for Ideal Inc.

• December 20, 2011 – The trial court signed an order granting withdrawal of counsel for 

Ideal Inc.

• December 21, 2011 – Appellees filed their first motion to compel production from Ideal 

Inc.

• January 6, 2012 – Appellees filed their motion to strike Ideal Inc.’s answer because the 

court had granted Ideal Inc.’s attorney’s motion to withdraw and the entity was not 

represented by an attorney.

• January 6, 2012 – A rule 11 agreement was filed with the court. Ideal L.L.P. agreed to 

pass the January 13, 2012 hearing on Ideal L.L.P.’s motion for summary judgment in 

order for appellees to pursue their motion to compel production against Ideal Inc.

• January 11, 2012 – Rucker, attorney for Ideal L.L.P., filed an appearance as attorney for 

Ideal Inc.

• January 12, 2012 – Appellees’ filed a supplemental motion to compel production from 

Ideal Inc. and Ideal L.L.P. (Appellees joined Ideal L.L.P. in their motion to compel 

production from Ideal Inc. filed on December 21, 2011.)

• January 12, 2012 – Ideal L.L.P. filed its response to appellees’ supplemental motion to 

compel production. Ideal L.L.P. stated in the response that it had produced the 

information requested in appellees’ December 21, 2011 motion to compel production and 

January 12, 2012 supplemental motion to compel production.

• January 12, 2012 – Correspondence from Rucker to appellees’ attorney states Ideal Inc. 

“is permitting him to produce a copy of the Asset Purchase Agreement.” The 

correspondence provides he is substituting as attorney for Ideal Inc. and, “[a]ccordingly, I 
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propose that you get your roofing expert to meet with ours at [appellees] and let’s see if 

we can agree on what needs to be done to fix any construction defects.”

• January 13, 2012 – Notice of a February 10, 2012 hearing on Ideal L.L.P.’s motion for 

summary judgment is filed by Rucker.

• January 25, 2012 – Supplemental responses of Ideal Inc. and Ideal L.L.P. to appellees’ 

supplemental motion to compel production are filed with the trial court, stating Ideal Inc. 

and Ideal L.L.P. have produced the requested information subject of appellees’ motion to 

compel production and supplemental motion to compel production, and the January 27, 

2012 hearing on those motions should be canceled.

• February 6, 2012 – Appellees filed their motion for continuance of a hearing of Ideal 

L.L.P.’s motion for summary judgment and their response to Ideal L.L.P.’s motion for 

summary judgment.

• February 6, 2012 – Appellees filed their second amended petition and request for 

disclosure. In their amended pleading, appellees asserted the Asset Purchase Agreement 

between Ideal Inc. and Ideal L.L.P. was a fraudulent transaction to avoid liability.

• February 8, 2012 – Notice was provided to appellees’ attorney by Rucker that the 

February 10, 2012 hearing on Ideal L.L.P.’s motion for summary judgment had been 

canceled.

• March 10, 2012 – Rucker forwarded correspondence to appellees’ attorney requesting an 

opportunity for a representative of “Ideal Roofing” to have access to appellees’ roof.

• April 2, 2012 – Ideal L.L.P. filed its privilege log with the trial court.

• April 27, 2012 – Appellees filed their second motion to compel production from Ideal 

Inc. and Ideal L.L.P.

• May 8, 2012 – Correspondence from Rucker to appellees’ attorney states that following 

the May 24, 2012 depositions of appellee Nery Armbruster and appellees’ expert, David 

Gregg, “Ideal Roofing’s” expert would inspect appellees’ roof “for purposes of 

inspecting the condition of the roof and any damages to [appellees’] residence.”4

• May 24, 2012 – Ideal Inc. and Ideal L.L.P. take the depositions of appellee Nery 

Armbruster and appellees’ expert, David Gregg.

• May 29, 2012 – The trial court signed a mediation order.5

 4 It is not contested that the inspection of appellees’ roof referenced in the correspondence was conducted.

5 At the hearing of Ideal Inc.’s and Ideal L.L.P.’s motion to compel arbitration, Hill stated to the trial court that the parties had agreed to 

mediate the dispute.
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• May 29, 2012 – The trial court notified the parties of a June 22, 2012 trial setting.

• June 4, 2012 – The trial court notified the parties of a November 5, 2012 trial setting.

• September 12, 2012 – Ideal Inc. and Ideal L.L.P. filed their unopposed motion to 

substitute J. Marcus Hill (Hill) as attorney for Ideal Inc. and Ideal L.L.P.6

• October 10, 2012 – Ideal Inc. and Ideal L.L.P. filed their unopposed motion to continue 

the November 5, 2012 trial setting.7

• October 10, 2012 – The trial court signed an order granting the substitution of Hill as 

attorney for Ideal Inc. and Ideal L.L.P.

• October 16, 2012 – The trial court notified the parties of an April 29, 2013 trial setting.

• November 9, 2012 – Correspondence from Hill to appellees’ attorney states that if the 

case was not resolved at the November 15, 2012 “wrap-up” mediation,8 Ideal Inc. and 

Ideal L.L.P. would like to file a proposed docket control order with the court and attached 

a proposed docket control order with deadlines in advance of the April 29, 2013 trial 

setting for appellees’ attorney’s consideration.

• November 13, 2012 – Correspondence to the mediator and appellees’ attorney from Hill 

advised of the need to reschedule the November 15, 2012 mediation because trial of 

another matter conflicted with that date. Hill assured the mediator and appellees of 

“Defendant’s” willingness “to work to resolve this matter” and requested dates of 

availability to re-schedule the second day of mediation.

• December 12, 2012 – A second day of mediation was conducted.

• December 20, 2012 – Correspondence from Hill to appellees’ attorney states, “Pursuant 

to the [Roof Contract], any dispute arising out of the [Roof Contract] should be settled 

through arbitration procedures. Accordingly, attached please find a draft of Defendants’ 

Application to Compel Arbitration & Stay Proceedings and Order.” Ideal Inc. and Ideal 

L.L.P. requested appellees to advise if they agreed to or opposed the application to 

compel arbitration. 

• January 2, 2013 – Ideal Inc. and Ideal L.L.P. filed their motion to compel arbitration and 

to stay proceedings.

 6 Hill was the registered agent for Ideal Inc. at the time the lawsuit was filed against Ideal Inc.

7 In their motion for continuance, Ideal Inc. and Ideal L.L.P. state that “[o]n October 5, 2012, the parties agreed to attend mediation . . . in 

attempt to resolve this matter.”

8 At the hearing of Ideal Inc. and Ideal L.L.P.’s motion to compel arbitration and to stay proceedings, Hill advised the trial court that if a 

settlement was not reached on the first day of mediation, the mediator would schedule a second “wrap-up” mediation.
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• March 15, 2013 – The trial court conducted a hearing on Ideal Inc. and Ideal L.L.P.’s 

motion to compel arbitration.

• March 26, 2013 – The trial court signed the order denying Ideal Inc. and Ideal L.L.P.’s 

motion to compel arbitration.

Knowledge of the Arbitration Agreement and Delay

The record indicates Ideal Inc. and Ideal L.L.P. were aware of the arbitration agreement 

at least within four months of answering the lawsuit, as reflected in the October 24, 2011 

correspondence from Rucker to Johnson and appellees’ attorney concerning the possibility of

arbitration. Fourteen months after that correspondence, and eighteen months after filing answers 

in the lawsuit, on December 20, 2012, Hill wrote to appellees’ attorney regarding appellants’

intention to file a motion to compel arbitration, followed by the January 2, 2013 filing of the 

motion to compel arbitration. When the motion to compel arbitration was filed, the case had 

been pending for nineteen and one-half months and had been set for trial three times. See Perry 

Homes, 258 S.W.3d at 596 (waiver found when party delayed fourteen months after filing suit); 

see also In re Christus Spohn Health Sys. Corp., 231 S.W.3d 475, 479–80 (Tex. App.—Corpus 

Christi 2007, orig. proceeding) (finding waiver after fourteen months of litigation and resetting 

matter for trial three times).9

With regard to whether appellants waived a contractual right to arbitration by delay in 

seeking an order from the trial court compelling arbitration, we are mindful that delay alone 

generally does not establish waiver. See In re Vesta Ins. Group, 192 S.W.3d at 763. The 

quantum of litigation conduct that will be deemed “substantial” depends very much on the 

context. See Perry Homes, 258 S.W.3d at 593. We must consider appellants’ delay in pursuing 

 9 We note that rule 6.1(b)(2) of the Texas Rules of Judicial Administration indicates that statutory county court judges should, as far as 

reasonably possible, ensure that civil non-jury cases are brought to trial or final disposition within twelve months of an appearance date. TEX. R.

JUD. ADMIN. 6.1(b)(2). Appellants’ motion to compel arbitration was filed some six months after the date rule 6.1(b)(2) suggests a non-jury civil 

case be resolved.
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arbitration of appellees’ claims against them in the context of other factors affecting the litigation 

process. See, e.g., id. at 590–91.

Discovery

The discovery conducted in the case by Ideal Inc. and Ideal L.L.P. and by appellees 

related to the merits of appellees’ claims and liability for appellees’ claims. Written discovery,

consisting of a request for disclosure, interrogatories, and requests for production, was served by 

Ideal L.L.P. on appellees. The written discovery was not pertinent to arbitrability of appellees’ 

claims or to jurisdiction. Further, the record indicates Ideal Inc. responded to the request for 

disclosures served on it by Ideal L.L.P. That written discovery was not pertinent to arbitrability 

or jurisdiction. Rather, the discovery was exchanged in connection with a dispute between Ideal 

Inc. and Ideal L.L.P. regarding liability for appellees’ claims. 

Appellees served requests for disclosure and requests for production on Ideal Inc. and 

Ideal L.L.P. Appellees filed two motions to compel production against Ideal Inc. and Ideal 

L.L.P. in an effort to obtain responses to appellees’ written discovery. Ideal L.L.P. filed a 

privilege log with the trial court with regard to documents sought by appellees through written 

discovery.

The only depositions in the case were taken by Ideal Inc. and Ideal L.L.P.: the deposition 

of appellee Nery Armbruster and the deposition of appellees’ expert witness.10 Appellees took 

no depositions and their attorney stated at the hearing on appellants’ motion to compel arbitration 

that they did not intend to take depositions. An inspection of the appellees’ roof was conducted 

by Ideal Inc. and Ideal L.L.P.

 10 At the hearing on appellants’ motion to compel arbitration, Hill indicated there was another deposition appellants desired to take.
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Merits Activity

The record reflects merits activity conducted by Ideal Inc. and Ideal L.L.P. Ideal Inc. 

filed an affirmative defense to appellees’ claims in which it asserted Ideal L.L.P. is the only 

potentially liable party. Ideal Inc. also filed a counterclaim against appellees for attorney’s fees 

incurred in defense of the lawsuit. After Ideal Inc. and Ideal L.L.P resolved a dispute between 

them concerning liability for appellees’ claims, they proposed appellees’ claims be mediated, and 

the trial court entered an order for mediation. The parties attended two days of mediation. Hill 

assured the mediator and appellees of Ideal Inc.’s and Ideal L.L.P’s willingness “to work to 

resolve this matter” in mediation. Ideal Inc. and Ideal L.L.P. forwarded a proposed docket 

control schedule to appellees for entry by the trial court in advance of the third trial setting of the 

lawsuit. Ideal L.L.P. filed a motion for summary judgment on the merits and twice set the 

motion for hearing, necessitating a response by appellees. As discussed above with regard to 

discovery conducted, Ideal Inc. and Ideal L.L.P. undertook inspection of the appellees’ roof. 

Indeed, a year before the filing of the motion to compel arbitration, Rucker wrote to the attorney 

for appellees in January 2012, proposing appellees’ expert meet with appellants’ expert in an 

effort to “agree on what needs to be done to fix any construction defects.”

Application of Perry Homes Waiver Standard

The supreme court in Perry Homes emphasized facts that would constitute waiver: 

“allowing a party to conduct full discovery, file motions going to the merits, and seek arbitration 

only on the eve of trial.” Perry Homes, 258 S.W.3d at 590 (quoting In re Vesta Ins. Group, 192 

S.W.3d at 764)). Here, appellant Ideal L.L.P. filed a dispositive motion on the merits in the form 

of a motion for summary judgment and the motion was twice set for hearing, appellants 

propounded written discovery on the merits, performed inspection of appellees’ roof, deposed 

appellee Nery Armbruster and appellees’ expert witness, attended two days of mediation, and 
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sought arbitration after the case had been pending for nineteen and one-half months and only 

four months before the third trial setting.11 On this record and considering the totality of the 

circumstances in this case, we conclude appellees met their burden of establishing appellants 

waived arbitration by substantially invoking the judicial process. See StaxxRing, Inc., 344 

S.W.3d at 650.

Prejudice

In addition to their burden of showing appellants substantially invoked the judicial 

process, appellees had the burden to show prejudice. See Perry Homes, 258 S.W.3d at 595 

(“waiver of arbitration requires a showing of prejudice”). “Prejudice” in the context of waiver of 

a contractual right to arbitration “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 that same issue.” Id. at 597 (quoting Republic Ins. Co. v. 

PAICO Receivables, LLC, 383 F.3d 341, 346 (5th Cir. 2004)). 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. In the context 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.” Id. at 595. Here, appellees presented sufficient evidence of prejudice resulting from 

appellants’ failure to move to compel arbitration for eighteen months.

Appellees filed this lawsuit in Dallas, Texas, where they reside. The arbitration 

agreement provides arbitration is to be conducted in Houston, Texas. Appellees assert 

arbitrating in Houston will pose an economic hardship on them. Appellants effectively concede 

economic hardship in their supplemental responses to appellees’ supplemental motion to compel

 11 At the hearing of appellants’ motion to compel arbitration, the trial court noted the discovery and merits activity that had been undertaken 

in the case. The trial court noted the appellees’ announcement they were ready for trial and that the case had been set for trial multiple times. 

Based on the totality of the circumstances, the trial court concluded appellees had substantially invoked the judicial process.
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production filed January 25, 2012, in which they state it would be an economic burden for their 

attorney to travel to Dallas, Texas, from Houston, Texas, to attend a hearing.

Appellees presented evidence of the financial detriment to them as a result of appellants 

invoking the litigation process. Appellees’ attorney represents them in this matter under a 

contingent fee agreement, with appellees responsible for payment of expenses, including the fees 

of their expert witness. Appellees introduced evidence of $3,500 expended in expert witness 

fees, including fees billed by the expert for attending his deposition taken by appellants. The 

arbitration agreement does not specify that discovery conducted in the lawsuit can be utilized in 

arbitration without the necessity for duplication of the written discovery and the depositions of 

appellees’ expert and appellee Nery Armbruster.12 See StaxxRing, Inc., 344 S.W.3d at 652 

(failure to prove discovery during litigation, and the attendant costs, would not have occurred in 

arbitration does not negate a conclusion of prejudice from failure to timely invoke an arbitration 

clause while simultaneously actively pursuing discovery under rules of civil procedure). 

Appellees argue they have been prejudiced by incurring expenses of two days of mediation, only 

to then have appellants move to compel arbitration with the attendant expenses arbitration 

entails. Further, appellees argued to the trial court at the hearing of appellants’ motion to compel 

arbitration that they did not intend to take depositions in the matter, they would rely on the 

discovery that had been conducted, and they were ready to proceed to trial months before the 

hearing on the motion to compel arbitration.

On this record and considering the totality of the circumstances in this case, we conclude 

appellees have met their burden of establishing they were prejudiced by appellants’ substantially 

invoking the judicial process. We resolve appellants’ issue against them.

 12 The arbitration agreement provides that arbitration conducted pursuant to the agreement shall be conducted “to the extent not

inconsistent” with the Commercial Arbitration Rules of the American Arbitration Association. However, no provision of the arbitration 

agreement describes what discovery is permitted under the agreement.
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Conclusion

The trial court did not abuse its discretion by denying appellants’ motion to compel 

arbitration. We affirm the trial court’s order denying appellants’ motion to compel arbitration.

130446F.P05

/Robert M. Fillmore/

ROBERT M. FILLMORE

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

IDEAL ROOFING, INC. AND IDEAL 

ROOFING, L.L.P., Appellants

No. 05-13-00446-CV V.

MIKE ARMBRUSTER AND NERY 

ARMBRUSTER, Appellees

On Appeal from the County Court at Law 

No. 5, Dallas County, Texas,

Trial Court Cause No. CC-11-03420-E.

Opinion delivered by Justice Fillmore, 

Justices Bridges and Lewis participating.

In accordance with this Court’s opinion of this date, the order of the trial court denying 

Ideal Roofing, Inc. and Ideal Roofing, L.L.P.’s motion to compel arbitration proceedings against 

them is AFFIRMED, and this cause is REMANDED to the trial court for further proceedings 

consistent with this opinion.

It is ORDERED that appellees Mike Armbruster and Nery Armbruster recover their 

costs of this appeal from appellants Ideal Roofing, Inc. and Ideal Roofing, L.L.P.

Judgment entered this 18th day of November, 2013.

/Robert M. Fillmore/

ROBERT M. FILLMORE

JUSTICE