Case No. 05-1 8-00140-CV



### IN TFIE COURT OFAPPEALS FOR TFIE FIF'TH 

### DISTRICT OF TEXAS



### ARCHER WESTERN 

### CONSTRUCTION,LLC

Appellant



### SOUTH 

### TEXAS INNOVATIONS, 

### LLC

Appellee
On appeal from the 193'dJudicial 

### District Court of Dallas County, Texas



### Ihe Honorable Carl Ginsberg presiding
APPELLANTOS 

### REPLY BRIEF

Paulo Flores State Bar No. 07164447 pflores@pecklaw.com Timothy D. Matheny State Bar 

### No. 24000258 tmatheny@pecklaw.com Tracey 

### L.Williams State Bar 

### No. 24031954 twilliams@pecklaw. com PECKAR 

### & ABRAMSON P.C. 8080 

### N. Central Expwy., Suite 1600, 

### LB 65 Dallas, Texas 75206 214-523 -5100 (telephone) 21 4-521

### -l 406 (facsimile) V ACCEPTED 05-18-00140-CV FIFTH COURT OF APPEALS

DALLAS, TEXAS 5/21/2018 12:48 PM LISA MATZ CLERK

### IDENTITIES OF 

### PARTIES AND COUNSEL Parties 

### Archer Western Constructiono 

### LLC Appellant/Defendant/Cros s-Plaintiff/Cross-Defendant South Texas Innovationso 

### LLC App e 1 I ee/ D efen dantlC ro s s - P

### IaintiffICro s s -D efend ant The 

### Hanover Insurance Company Interested Party Counsel 

### Archer Western Construction, 

### LLC Trial and Appellate Paulo Flores State Bar No. 07164447 pflores@pecklaw.com Timothy D. Matheny State Bar 

### No. 24000258 tmatheny @pecklaw.com Tracey 

### L. Williams State Bar 

### No. 24031954 twi I I iams @p ecklaw. com PECKAR 

### & ABRAMSON P.C. 8080 

### N. Central Expwy., Suite 1600, 

### LB 65 Dallas, Texas 75206 

### (2t4) s23-sr00

1South Texas 

### Innovations, 

### LLC andThe 

### Hanover Insurance 

### Company

Trial and Appellate Seth 

### I. Rubinson State Bar 

### No. 24053908 srubinson@rubinsonlaw. com 

### RUBINSON 

### LAW 1135 Heights Blvd. Houston, Texas 77008 

### (832) 48s-48e9 fDamian W.Abreo - 

### Mr. Abreo haswithdrawn as counsel 

### for STI and Hanover State Bar 

### No. 24006728 dabreo@jdkglaw.com JOHNSON 

### DELUCA 

### KURISKY 

### & GOULD 4 Houston Center 

### l22lLamar St., Suite 1000 Houston, Texas 

### 770I0 (713) 6s2-2s2sl Appellate only: Nancy H. 

### Elliott State Bar No. 08701240 ne I I iott@ zflaw ftrm. com 

### ZABEL FREEMAN 1135 Heights 

### Blvd. Houston, Texas 77008 (7

### t3) 802-ert7

1l

### TABLE OF 

### CONTENTS

IDENTITIES OF PARTIES 

### AND COTINSEL 

### INDEX OF

### AUTHORITIES REPLY 

### I Preliminary Matters ........., 

## A. Standard of Review B. Appellee cannot use evidence 

### in this appealthat was not presented to the

### Trial Court, and 

### all such evidence should be disregarded by this Court. 

## il. Appellee cannot 

### validly make arry argument 

### that Archer expressllz waived the arbitration clause 

## A. There is no evidence whatsoever 

### of an express waiver 

## B. There is no waiver byArcher of its waiver argument 

## C. The "evidence" presented, 

### allegedly 

## in support 

### of Appellee's argument 

### of express

### waiver clearly does not rise to the level of express 

## II. Archer did not substantially invoke the

### judicial process so asto 

### impliedly waive the arbitration clause. 

## m. Appellee has 

### not shown legal prejudice 

### sufficient for afinding of an implied waiver of the arbitration clause 

## ry Appellant hereby 

### withdraws 

### its Issue 

### No. 1

## - The

### trial court erred (or, alternatively, abused its discretion) 

### in denying Archer 

### Western's 

### Motion

## to Stay

### the Proceeding 

### and

## to Compel 

### Arbitration asthe arbitration clause itself prohibits waiver.......... 

### PRAYER CERTIFICATE OF SERVICE

......... 

### CERTIFICATE OF 

### COMPLIANCE ... i 

### .iv

1
1
1

2 2 4 2

6
6 ...16

. 18

. 18 

### .20 .20

111

### INDEX OF

### AUTHORITIES

Cases 

### Apollo Theater Found., 

### Inc.v. W. 

### Int'l Syndication, 

### No. 02

### CIV 10037,2004 U.S. Dist. 

### LEXIS 11110 (S.D.N.Y. June 

### 2r,2004) BBX Operating, 

### LLC v.Am, 

### Flourite, Inc., 

### No. 09-17-00245-CV, 2018 

### WL 651276 (Tex. 

### App.- Beaumont February 

## l, 201 8, no pet.)............. 

### In re Bruce Terminix Co., 988 S.W.2d702 (Tex. 1998)...... Cent. Educ. Agency v. Burke, 711 S.W.2d7 

### (Tex. 1986).... Ellman v.J.C. Gen. Contractors, 419 S.W.3d 516 (Tex. 

### App. - 

### El Paso 2013, no pet.) 

### In re Fleetwood Homes of Tex., 257 S.W.3d 692 (Tex. 2008)......

Garcia v. Huerta, 340 S.W.3d864 (Tex.App.-San 

### Antonio 2011, pet. denied)...... Greystar, 

### LLC v.Adams, 426 S.W.3d 861 (Tex. 

### App. - Dallas 2014, no pet) Henry v. Cash Biz, LP, 

### No. 16-0854,2018 

### WL 1022838,2018 Tex. 

### LEXIS 164,

### _S.W.3d

_ (Tex. F eb.23, 20 18)...... Hogg v. Lynch, Chappell 

### & Alsup, P.C., 480 S.W.3d767 (Tex. 

### App. - 

### El Paso 2015, no pet.) Page(s)

a J


### 3,14

4

5

G.T. Leach Builders, 

### LLC v. Sapphire V.P., L.P., 458 S.W.3d 502 (Tex.

## 2015)...... 4,8,10, 11 

### .15, 16 ....4, 

### l0

......3

.2

4

1VOkorafor v. (Jncle Sam & Assocs.,

295 S.W.3d27 (Tex. App. - Houston [1st Dist.], no

## pet.). .............3,15 Perry Homes v. Cull, 2s8 S.W.3d 580 (Tex. 2008).......... 

### r,3, 4,7 

### ,

# ll, 13, 16 

### Prof'l Advantage Sofnuare Solutions, Inc. 

### v. West Gulf Mar. Ass'n Inc,, 

### No. 01-15-01006-CV, 2016 

### WL 2586690 (Tex. 

### App.- Houston [1st 

### Dist.l May 5,2016, no pet.) 

### Triton Container Int'1, Ltd. v. 

### Baltic Shipping Co,, 

### Civil Action No. 95-0427 CIW 95-2229,1995 

### WL 729329,1995 U.S. Dist. 

### LEXIS 18213 (E.D.La. 

### Dec.7,1995), 

### affd,95 F.3d 54 (5th Cir.1996)...... Tuscan Builders, LPv. 1437 SH6 L.L.C., 438 

### S.W.3d7I7 (Tex. App. - Houston [1st 

### Dist.] 2014, no pet.).... 

### In re Vesta Ins. Group, Inc., 192 S.W.3 d759 (Tex.2006) 

### (p"t curiam) 

### Wisennant v.Arnett, 339 S.W.3d920 (Tex. App. - Dallas 2011, no pet.) 

### Other Authorities Tex. R.App. 38.1 .........3 

### I4

14

10

5

5

V

### REPLY 

# I. Pnnr-rnananv 

### MarrERS: 

# A. SraNoann 

### or Rnvrnw 

### "A reviewing court should defer

### to a

### trial court's factualfindings 

### if they are supported 

### by the evidence, 

### but ultimately 

### the question 

### whether 

### a waiver has occurred is a question of law, which an appellate court reviews de novo."l Under a proper abuse-of-discretion review,waiver is aquestion of law 

### for the court, and 

### we do 

### not defer 

### to the

### trial court on questions

### of law. We 

### do defer

## to a trial court's factual findings 

## if they are supported 

### by evidence, but there was no factual dispute here
. . .This 

### leaves 

## only

## the conclusion 

### whether 

### such conduct constitutes 

### prejudice, 

### a legal question 

### we cannot 

### simply abandon 

### to the trial court.2 

### In the case before 

### this Court, therewere 

### no findings 

### of fact 

### by the

### trial court 

### whatsoever. 

### In fact,the sum 

### total 

### of the

### trial court's Order,

### with respect

### to the 

### Motion

### to Compel 

### Arbitration, 

### was: "ON THIS 

### DAY came

### to be heard Archer 

### Western's 

### Motion

## to Compel 

### Arbitration. Having taken 

### the matter under advisement, 

### the Court herby DENIES 

### the Motion 

### to Compel 

### Arbitration." As such, 

### there are 

### no

### trial court findings 

### of fact

### for this Court

### to consider, 

### and 

### it reviews the

### trial court's action de novo, as a matter

### of law, for abuseof discretion.

t Hoggv. Lynch, Chappell & Alsup, P.C.,480 S.W.3d 767,780 (Tex. App. - El Paso 2015, no pet.) t Perry Homes v.Cull,258 S.W.3d 580, 598 (Tex. 2008).

1B. Appnr-r,nE 

### cANNor usn EVIDENCE 

### IN THIS AppBAL THAT 

### wAs 

### Nor IRESENTEDTo

### tnn TRr,ql, 

### Counr, ANDALL sucH EvTDENCE sHouLD BE DTSREGARDED BYTHrs 

### Counr. The evidence submitted 

### by South Texas Innovations, 

### LLC ("Appellee") for 

### its argument 

### of waiver consisted 

### of the 15 exhibits 

### to Appellee's Response and 

### Opposition

## to Archer Western Construction's 

### Motion

## to Stay 

### and Compel 

### Arbitration ("Response"), andthetestimony at hearing 

### of Damien Abreo and Gary Haymond, asfound in the Reporter's 

### Record.

### All other evidence presented to this 

### Court 

### by Appellee, 

### including 

### the Supplemental 

### Clerk's Record submitted by 

### Appellee 

### to this Court 

### on

## April 18, 2018,

### with the exception

### of those parts duplicative 

### of the Response exhibits, should be disregarded and not considered by 

### this 

### Court. Any items not presented 

### to the

### trial court

### will not be considered 

### by a court 

### of appeals in its scope of review of the

### trial court's action.3 

## il. Appnr,r,nn 

### cANNor vALIDLy MAKE

### ANy ARGUMENT 

### THAT ARcrrnn EXPRESSLY WAIVED THB ARBITRATION CLAUSE. 

## A. There is no evidence whatsoever of an express

### waiver There was 

### never any evidence 

### of express 

### waiver presented 

### by Appellee to the

### Trial 

### Court. (In fact, as addressed next,Appellee did not even raise the issue 

### of express

### waiver atthe

### trial court 

### level.) There 

### could be 

### no evidence 

### of express
3Greystar, LLC v.Adams,426 S.W.3d 861, 865 (Tex. App. - Dallas 2014, no pet.)("It is well-established an appellate court may not consider matters outside the record, which includes documents attached to abrief as an exhibit or an appendix that were not before thetrial court."); See also Hogg,480 S.W.3d at787, n. 10.
2

### waiver, as none exists, as supported 

### by one

### of Appellee's 

### own cited cases. As

stated by Appellee 

### in its 

### Brief: "Express waiver ariseswhen a party affirmatively indicates that 

### it wishes to resolve the case in the

### judicial forum, rather than through 

### arbitration."a

## A case 

### relied 

### on 

### by Appellee 

### in its 

### Brief amplifies on this, and makes clear that theword "express" means what 

### it says - express: 

### Aparty makes an expresswaiver when 

### it 'affirmatively indicates that 

### it wishesto resolvethe case 

### in the

### judicial forum, rather than through 

### arbitration.' Ohorafor

### v. (Jncle Sam

### & Assocs., 

### lnc.,295 S.W.3d 27, 

### 39 (Tex.App.-Houston 

### [1st 

### Dist.] 2009, 

### pet. denied); 

### see Triton Container 

### Int'L, 

### Ltd. v. 

### Baltic Shipping 

### Co., 

### CIY.A. 95-0427, 1995 

### WL 729329, 

### at 

### *3 (E.D.La. 

### Dec. 

### 8, 1995),

### aff

### d, 95 F.3d 54 (5th 

### Cir.I996) (party's communication 

## to opposing counsel expressly stating 

### that 

## it intended 

### to settle

### the case and

### did not intend 

### to seek arbitration, was an express 

### waiver of the 

### right

### to arbitrate); Garcia v. 

### Huerta, 340 S.W.3d 

### 864, 867 (Tex.App.-San 

### Antonio 2011, pet. denied) (court found express 

### waiver where party 

### affirmatively stated 

### in settlement agreement

### that 

## it was

### waiving 

### its right

### to enforce an arbitration agreement). 5 As the cases cited in Hogg make clear -

### for express waiver to occur, there has to be 

### an express statement 

### affirmatively stating something

### to the effect

### of 

## "I waive 

### arbitration." Just

### for reference, 

### in Perry Homes 

### v. Cull, the 

### only Texas Supreme

aAppellee's Brief atpg.18, citing, Okorafor v. (Jncle Sam & Assocs.,295 S.W.3d 27,39 (Tex. App. - Houston ;1't Dist.1, no pet.); see also BBX Operating, LLC v.Am. Flourite, Inc., No.09-17-00245-CV,2018 WL 651276, at *15 (Tex. App.- Beaumont February 1,2018, no pet.); and Apollo Theater Found., Inc. v. W. 

### Int'l Syndication, No. 02CIV 10037, 2004 U.S. Dist. LEXIS 11110, at *8 (S.D.N.Y. June2I,2004). t Hogg,480 S.W.3d at78l.

a JCourt case

### finding awaiver 

### of an arbitration clause,6 even a

### 79 page objection to



### arbitration was 

### not found

### to be an express 

### waiver 

### of the arbitration clause; the Texas Supreme Court 

### still underwent the 

### implied waiver 

### analysis: 

### "But under the totality-of-the-circumstances 

### test, discovery 

### is not 

### the only measure 

### of waiver 

### Here, 

### when the warranty defendants 

### initially moved

### to compel arbitration, the 

### Culls 

### filed

### a 79-page response opposing 

## it


## . In our case,there was no evidence 

### of expresswaiver argued 

### or submitted by Appellee to the

### trial court, nor could there be - no such evidence exists. 

## B. There is no

### waiver by

### Archer of its

### waiver argument Appellee argues, 

### at page

### 20

### of its Brief, "Archer Western haswaived any 

### complaint about 

### its express 

### waiver 

### of arbitration 

### by failing to raise

### it in the

### trial 

### court and 

### its 

## brief." Not only does

### this argument have 

### no merit whatsoever, Appellee never argued express waiver to the

### trial court, either 

### in its Response or in 

### its oral argument 

### to the

### trial 

### court. Nowhere 

### in Appellee's Response, 

### nor 

### in its argumentto the Court, does Appellee ever refer to, or invoke, express

### waiver. A11

u In Hurry v. Cash Biz, LP,2018 WL 1022838,2018 Tex. LEXIS 164, -S.W.3d 

### -, (Tex. Feb.23,2018), a casecited in Appellee's Response, the Texas Supreme Court noted, "We have declined to conclude that the rightto arbitrate was waived in all but the most unequivocal of circumstances." The Texas Supreme Court then citesto its Perry Homesopinion where

### it did find awaiver; and thento G.T. Leach Builders, LLC,458 S.W.3d at5l2,In re Fleetwood Homes of Tex.,257 S.W.3d 692,694 (Tex. 2008), and In re Bruce Terminix Co.,988 S.W.2d 702,703- 04 (Tex. 1998), as cases in which it did notfind waiver. The Texas Supreme Court could have equally said that only one case exists in which it concluded that the right to arbitrate was waived.

7Pnrry Homes,258 S.W.3d at596.
4ofAppellee's argument, both in its Response,t as

### well as in its argument to the

### trial

court,e addressed

### the concept 

## of implied waiver, 

### specifically: 

### (1) substantial 

### invocation

### of the

### judicial process; and 

### (2) prejudice

### toAppellee. As Appellee states 

## in its own Response, 

## "It iswell established 

### that 'fi]ssues 

### not expressly presented 

### to the

### trial court may 

### not be considered 

### on appeal 

### as grounds 

### for reversalf.1r,10 11is Appellee who has never argued express waiver. 

### It is clear from the Reporter's Recordthat all the

### trial court judge considered
was 

### implied 

### waiver. The

### judge himself 

### stated: 

## "I think we're 

### just talking about invocational process." 1 1 

### In any event, Appellant 

### is appealing the

### trial court's one sentence denial 

### of its 

### Motion to Compel 

### Arbitration. There is no reasonto, nor isAppellant obligated to, separate out and address different subsets of waiver.

8In fact, aword search reveals theword "express" does not appear in STI's Response. eAll references by Mr. Rubinson in the Reporter's Record are to "substantial invocation" and "prejudice;" he never even uses theword "express," much less does he argue an express waiver, or present any evidence whatsoever 

### of an express 

### waiver. Mr. Rubinson mentions substantial invocation of thejudicial process at RR pg.7,line 16; pg. 8, line s3-4; p9.9, lines 5- 

### 6and16;pg.27,line25;andpg.29,line5. Heonlymentions"prejudice"once,atRRpg.29, Iine 7, but at least he mentions it and clearly intended to put on evidence of prejudice (although it was clear insufficient). And, asstated above, "express waiver" is never even mentioned.

r0 Respotrreatpg.35, (citing Cent. Educ. Agencyv. Burke,711 S.W.2d 7,8 (Tex. 1986); see also Whisennant v.Arnett,339 S.W.3d 920,926 (Tex. App. - Dallas 2011, no pet.); and Tex. R.App. 38.1.

r1 RR atpg.15, lines

### l2-I4. (It is clear from RR at pg. 7, lines 10-16 that thetrial judge used "invocational" as shorthand for "substantial invocation of thejudicial process.")

5

### The ooevidence" 

### presented, 

### allegedly 

## in support 

## of Appelleeos 

### argument 

### of express

### waiver clearly does 

### not rise

### to the level 

### of express

### waiver: 

## If somehow

### this Court 

### still believes 

### that there 

### is any issue 

### in this case regarding express waiver; this is the sum

### total of Appellee's "evidence," as argued 

### in its 

### Brief tothis Court, 

### of express waiver: 

### Certainly. 

## I had initiated 

### two separate 

### lawsuits 

### on behalf 

### of South 

### Texas Innovations. 

### One lawsuit 

### was against 

### Lennar MultiFamily Communities, 

### which is the 

### entity developing the projects

### that forms 

### the basis

## of this suit. The otherwas against 

### Archer Western Construction, the general contractor. 

### In both cases, opposing counsel 

### filed motions 

### to compel arbitration, 

### motions 

## to stay. 

### We had 

### a discussion, 

### and

## in the course 

## of that discussion, 

### it was agreed 

### -- and please 

### allow me 

### to use that 

### word in the loose sense, not a 

### Rule 11or aformal contract -- but 

### it was agreed between usthat 

### I would nonsuit the arbitration. 

### Andthere's a number of reasonsfor

### that. 

### I would then move to consolidate the case against 

### Archer 

### into the pending 

### litigation brought 

## by Beaird.

### And the statement was, we

### won't move this 

### to arbitration as long aswe can get everything resolved 

### in the context 

### of one 

### lawsuit. Does 

### that answer your question?12 

### It is self-evident -this is not an express waiver 

### of anarbitration clause C.



## il. AncTTnn DID NoT SUBSTANTIALLY INVOKE THE JUDICIAL PRoCESS So ASTO IMPLIEDLY WAIVE THE ARBITRATION CLAUSE. Appellant agrees 

### with Appelleethat the applicable standard 

### for this Court to consider 

### is the "Totality 

### of the Circumstances 

### Test" announced 

### by the Texas


### t'RR Il-12 -testimony by Appellee's former counsel, Damian Abreo, to thetrial courl.
6Supreme Court in Peruy Homes v. 

### Cull.t3 This has been thoroughly briefed by the

Parties, but afew points in reply toAppellee's 

### Brief: Appellee's statement 

### at page

### 28

### of its Response, 

### that "Archer purposely delayed 

## in seeking arbitration 

### until after

### the

### trial court denied 

### its motion for continuance 

### and shortly before

### the

### trial setting" 

### is absolutely 

### inaccurate. The 

### trigger here,

### which 

### is conveniently ignored 

### by Appellee, was the mediation date. On January 

### 9,2018, mediation was held on 

### Beaird's claims, pursuant 

### to order 

### of the 

### trial court, and 

### all of Beaird's claims 

### were settled, 

### leaving 

### only the claims between 

### Archer Western 

### and 

### STI

### for adjudication. Therefore, 

### on January 22, 

### 2018, 

### Archer Western 

### filed its Motion

### to Stay 

### the Proceeding and

### to Compel 

### Arbitratiotrto 

### 1th. "Motion 

## to Compel 

### Arbitration") that 

### is the subject

### of this 

### appeal. Subsequently, 

### on February 

### 27, 2018,

### the

### trial court signed 

### the Agreed Order 

### to Dismiss Certain Claims and Parties 

### with Prejudice. 15This was the point in the 

### life of this lawsuit when all that existed were claims subject to the arbitration 

### clause. This 

### is consistent, 

### for example, 

### with why pleadings, etc. 

### filed after the consolidation 

### did not have a statement saying they were subject 

### to the 

### Motion to Arbitrate.

t3 Pnrry Homes,258 S.W.3d at59I-592. to CR at pages 244 - 256. t5CSR at pages 40

### - 43.

7

### With respect to the counterclaim referenced by Appellee 

### in its 

### Brief, at page



## 25: 

## (l) As cases 

### cited 

### in Appellee's 

### own 

### Brief state: "the

### filing of defensive pleadings, including mandatory 

### or compulsive counterclaims, made 

### in response to
a party's pleadings, do 

### not necessarily

### waive arbitration."16 (2)

### As pointed out 

### in Appellant's 

### Brief, the

### trial court granted the 

### relief requested byAppellant 

### - it put a 

### stop

### to the serial 

### lien

### filing engaged 

### in by Appellee that was interfering with funding for the construction project.lT This is clearly not a case in which Appellant sought 

### judicial relief that was denied and then sought to switch to adifferent forum



## - arbitration. 

### (3) Appellee, surely, cannot engage 

### in wrongful conduct 

### that is subsequently restrained 

### by the

### trial court,l8 

### and use

### Appellant's protective and defensive response as a basis for claiming waiver. 

### With respect toAppellee's argument that Appellant sought extensive meritsbased 

### discovery

### from STI,

### this 

### is simply 

### not borne 

### out 

### by the 

### record. The discovery 

### listed 

### at page 

### 27

### of Appellee's Response 

### was largely defensive and related 

### to Beaird 

### Drilling's claims, as detailed at pages 28 and

### 29 

### of Appellant's

'u Hogg,480 S.W.3dat784 (Tex. App.

### - El Paso 2015, no pet.) (citing G.T. Leach Builders,458 S.W.3d at 512-13). 

### tt To the extent the Court considersthe supplemental record filed by Appellee, the Temporary Restraining Order entered by thetrial court on December 4,2077 andthe Agreed Temporary Injunction Order entered by thetrial court on December 14,2017 are part of such record - 2ndSupp. CR217-19 and228-89 (none ofwhich were presented to thetrial court, in the Response or at hearing). r8To the extent the Court considers the supplemental record, see 2nd Supp. CF*2I7-I9 and228-89.

8

### Brief. The 

### legal standards are addressed

### in Appellant's 

### Brief, as

### well as further

addressed below using Appellee's own cases. 

### Although not hugely material, Appellee's 

### timing calculation

### - a delay 

### of 5- l12 months 

### - is actually inaccurate. Appellee calculates its 

### timing from the date 

### it filed suit, JuIy 7,2017 

## . The proper calculation should bewhenAppellant appeared in this case -August 

### 28,2017.te Appellant 

### filed its 

### Motion to Compel

### Arbitration
on January 22,201820

### - less than

### five months after answering and appearing in this 

### suit.2r Acknowledging that length

### of delay standing alone is not dispositive, only
one 

### of the casescited 

### by both Parties tothis Court even contemplates such a short 

### time peri od 

### - Hogg v. 

### Lynch, Chappett 

### & Alsup.2'

### Ar detailed below, 

### Hogg had extreme facts - Ms. Hogg perjured herselfto the

### trial court and moved

### to abate 

### for arbitration on the eve 

### of suffering death penalty type sanctions from the

### trial court. As noted, even in Hogg: 

### LCA contends that 

### it was prejudiced by 

### Ms. Hogg's delay 

### in seeking 

### arbitration, 

### pointing 

### outthat 

### Ms. Hogg 

### had been aware

## of the existence 

### of the arbitration clause 

### from the outset

### of litigation, yet waited

### to

### file her 

### motion

### to compel arbitration three months after the parties began 

### discovery, and less

### than 

### four months before 

### the trial

tecsR atpg.12. 20CR at pages 244 - 256. 

## " Snn, e.g., RR atpg. 13, lines 19-25; and pg. 14, lines 1-16. Of course, even that is irrelevant -the Motion to Compel Arbitration wasfiled within two weeks of thetriggering event
-the mediation, and was actually filed even before the dismissal of the Beaird Drilling claims. 

## " Hogg,480 S.W.3d 767.
9setting.

### We do 

### not, however, 

### find that

### this approximate three-month

delay, standing alone, prejudiced 

### LCA's case. 

### In fact, various courts 

### have found 

### that much longer delays are 

### not sufficient 

## to cause 

### prejudice

### to the opposing 

### party's case. See, e.g., 

## In re Fleetwood Homes

### of Tex., 

### L.P.,257 S.W.3d 

### 692, 694 (Tex.2008) 

### (per curiam) (eight-month 

### delay);In 

## re Vesta 

### Ins. Group, 

### Inc., 192 S.W.3d 759, 763 (Tex.2006) (per curiam) (two-year delay).z3 

### As covered thoroughly 

### in Appellant's Brief, typically the delays addressed by the 

### Courts arefar 

### in excess 

### offive months, almost always over 

### a year, and often in

excess 

### ofa year and a half. 

### Finally, as

### to this issue,

### a survey 

### of the Courts 

### of Appeal casescited by 

### Appellee 

### in its Brief where 

### a

### finding 

### of waiver was

### found 

### or sustained, actually push 

### toward a

### finding 

### by this Court that under the

### Totality of the Circumstances Test there has clearly 

### not been 

### a substantial invocation 

### of the

### judicial process by Appellant, nor a

### sufficient showing 

### of prejudice 

### to Appellee, such as

### to overcome 

### the heavy burden 

### to show an 

### implied waiver 

### of the arbitration 

### clause. We start 

### with the incredibly thorough 

### Hogg opinion, 

### which has already been cited heavily inthis Reply. Key points from Hogg 

### follow: 

## As noted above, 

## "the

## filing

## of defensive pleadings, including mandatory or compulsive counterclaims, made in response to a party's pleadings, do not necessarily 

### waive arbitration."2a

23Id. at7gl. 2aId. at 784 (citing G.T. Leach Builders,458 S.W.3d at 512-13) a

10a 

### "Ms. Hogg correctly points out that there are 

### multiple cases 

### in which 

### the parties engaged 

### in far more extensive discovery 

### for far longer periods oftime, yet the courts in those cases found that arbitration had 

### not been

### waived. 

## In fact,

### the Supreme 

### Court recently chronicled several

### of its holdings 

### in which 

## it declined

### to find a

### waiver despite rather extensive and prolonged discovery periods ranging

### from six to nineteen months."25

o 

### "Although 

### how long a party has engaged 

### in pretrial activities 

### is one factor 

### to be considered 

### in determining whether arbitration has been waived, acourt should not 

### look simply to the number 

### of days between the 

### initiation 

### of litigation and the request

### for arbitration; instead,the court should consider 

### how extensivethe discovery was 

### in the context of the facts 

### of a particular case."26

o 

### "Ms. Hogg's own attorney admitted in his sworn 

### affidavit that at least 

## half 

## of the discovery conducted 

### went

## to the question

## of the enforceability 

### of the contingent fee agreement, 

### which clearly went to the merits of

### this ease."21

o 

### "While we cannot conclude that the parties inthis case conducted

### 'full discovery,' 

### we are able

### to conclude that the parties had conducted a substantial amount 

### of discovery

### with regard 

### to this single-issue case, and were 

### likely nearing 

### the end

### of the discovery proceedings when 

### Ms. Hogg

### filed her motion

## to compel arbitration. 

### Once again, however, 

### this does 

### not end

### our analysis, asthe next factor is perhaps 

### the most important 

### factor 

### in our determination whether 

### Ms. Hogg substantially 

### invoked the

### judicial process 

### [--] Ms. Hogg 

### Willingly Engaged in 

### Litigation 

### Until She Faced anAdverse Ruling."28

2sId. at788 (citing G.T. Leach Builders,458 S.W.3d at 514-15). '6 Id.lcitingCitizens Nat'l Bank 271 S.W.3d at 355 (citing Percy Homes,258 S.W.3d at 590, 593)). 

## " Id. at7B9. '8 Id.

11a 

### In readingHogg, 

### it is crystal 

### clearthis wasthe crux 

### of the case 

### - the reason 

### why boththe

### trial court and 

### the 

### El Paso 

### Court 

### of Appeals found awaiver of the arbitration clause. 

### In the interest of brevity, the facts

### will be summarized here, 

### butthey can befound at page 777

### of the Hogg 

### opinion. In summary, Ms. Hogg responded to a Request 

### for Production 

### that 

### no recordings between 

### her and 

### the Defendant (the party opposing arbitration) existed; she so testified under oath

### to the trial judge 

### in a motion 

### to compel hearing; however, she had (probably accidentally) sent an email to Defendant 

### stating: "Hey do not mention 

### that 

## i recorded every meeting 

### with those attys 

### in midland. 

### Idk 

## if its legal. 

### And 

### u def dont want them 

### knowing 

## i recorded mediation! 

### My new attys

### will deal

### with 

### it please dont even

### tell ur dad! 

### No one needs 

### to know! Love 

### u dont

### worry! Focus 

### on 

### u sweet baby 

### girl. Say ur prayers. 

### It

### wil all come out in the end. 

### I only appear to bestupid son! 

### I love 

### yall! George iswatching over us! Hugs! Thank you, DGHogg.u2e Probably 

### not surprisingly, when on 

### the eve 

### of being sanctioned Ms. 

### Hogg 

### filed a Motion 

## to Abate 

### for Arbitration, such 

### Motion was denied, and the denial was affirmed by the 

### El Paso Court of Appeals.

o 

## It is clear 

### from the 

### Hogg opinion thatthe overarching basis 

### for the 

### Court's holding was

### the inescapable conclusion that 

### Ms. Hogg was 

### trying to avoid soonto be placed sanctions. 

### "In the present case, Ms. Hogg was

### willing to participate in the discovery process andto litigate 

### the discovery battle 

### with 

### LCA in a

### judicial forum only up 

### until the 

### pointthat she received an adverse 

### ruling fromthe district court and 

### was faced 

### with the possibility

## of having 

### the court impose case

### crippling sanctions." 30 

### "[T]here can be no doubt that her strategy 

### in attempting 

### to switch forums atthis criticaljuncture was heronly hope

2eId. at777. (Ms. Hogg's son's name was Scott Lee Whitley; the attorney, who was with the Defendant lawfirm, was named Scott Ryburn; 

### it appears Ms. Hogg meantto send her son Scott, not to the Scott thatworked for her opponent.)

30Id. at7go.

T2o

a 

### of getting 

### a 'second 

### bite atthe apple' on the issue

### of the parties' discovery dispute." 3I The 

### Hogg Court then came back

### to this theme, as quoted below, to 

### find prejudice. But first, pertinent

### to our case,the 

### El Paso Court

### of Appealsfound there was 

### insufficient evidence presented 

### of prejudice 

### with respect

### to costs 

### incurred. Just as 

### in this case,

### the evidence

### of costs 

### in Hogg was 

### very general and

### generic. "However, as setforth above, 

### in the present case, 

### not only 

### did 

### LCA fail to provide any 

### evidence

## of the costs

## it incurred

## in responding

## to Ms. Hogg's discovery requests,

### it failed

### to provide any evidence 

### from which we 

### could conclude 

### that 

### the discovery requested 

## by Ms. Hogg was "substantial" or that 

### LCA provided her

### with 'extensive' documents in response 

### to her requests."32 "Therefore, based on the record before us,

### we are unable 

### to conclude that 

### LCA would suffer any significant 

### financial detriment 

## if the

### parties' dispute 

## was submitted to arbitration."33 

### However: 

### "In determining whether prejudice has resulted 

### in 'cases 

### of waiver by 

### litigation conduct, the precise question is not so muchwhen 

### waiver occurs as

### when 

### a party can 

### no longer take 

## it back.' Perry Homes,258 S.W.3d 

### at 595. In the present case,we concludethat the 

### point atwhich Ms. Hogg could 

### not 'take 

### it back' occurred when, after 

### willingly participating 

## in litigation overthe discovery dispute, she suffered an adverse 

### ruling from the

### trial court, and was faced

### with the 

### nearcertainty 

### of having 

### a sanctions 

### order entered against her. Ms. 

### Hogg's last-ditch effort 

### to save her casefrom the impending sanctions 

### order, 

## by seeking 

## a new forum 

## in which she 

### could potentially relitigate that issue, simply came too late." 34

3t Id.

### x79r. 32 Id. at 793. 33 Id. 34Id. at796. 

### I3These "unique facts" are obviously extreme; the facts beforethis Court in no

way approach the unique facts in 

### Hogg 

### Below, 

### is a 

### brief statement 

### of why the remaining Courts 

### of Appeal cases cited 

### by Appellee actually support

### Appellant's position 

### inthis appeal 

### (in reverse date order): 

### BBX Operating, 

### LLC v. Americqn 

### Flourite, 

### Inc., 

### No. 09-17-00245-



### CY,2018 

### WL 651276 

### (Tex.App. 

### - Beaumont February 

### 1,2018, no 

### pet.) 

### - The basis 

### for denial

### of the motion 

### to compel arbitration was invocation 

### of relief by movant andthat 

### relief was denied by the

### trial court, and 

### then movant moved 

### to compel

### arbitration. "BBX then received an adverse 

### ruling when the

### trial court denied 

### BBX's motion 

### to enforce the 

### Rule 11

### Agreement. Only after receiving 

### this adverse 

### ruling did 

### BBX file its demand for 

### arbitration." BBX Operating at *8. 

### Prof'l Advantage Sofnuare Solutions, 

### Inc.

### v. West 

### Grlf Mar. Ass'n 1nc., 

### No. 01-15-01006-CV, 2016

### WL 2586690 (Tex. 

### App. 

### - Houston 

## [lst Dist.] 

### May5, 2016, 

### no pet.)

## - Particularly egregious 

### facts
- 

### Almostthree year delay 

## in filing motion, 

### andthree attempted summary judgment motions engaged 

### in by movant, 

### all denied by the 

### trial court, afterwhich movant moved to compel arbitration. o o

o

a 

### "Therefore, because

## we find that 

## Ms. Hogg purposefully and 

### unjustifiably manipulated the exercise of her arbitral rights to her own advantage and

### to 

### LCA's prejudice,

### we conclude that, based on these unique facfs, Ms. Hogg waived her right to arbitration." 35

Tuscan Builders, 

### LPv. 1437 SH6 

### L.L.C.,438 S.W.3d 717 (Tex. App.


### - Houston [1't 

### Dist.] 2014, no pet.) 

### - One year delay 

### in filing motion, 

### during 

### which 

### not only did movant engage 

### in substantial discovery, 

### movant also

### joined 

### third parties, 

### and

### then benefitted 

### from their substantial discovery.

3t Id.

## le phasis added) 

### t4a

a 

### Ellmanv.

### JC Gen. 

### Contractors,4l9 S.

### W. 3d 516 (Tex. 

### App.

### - El Paso 2013, no pet.) 

### - Three year delay 

### infiling motion and movant admitted, 

### in court pleadings, to have conducted "extensive discovery." 

### Ellman at 519. Okorafor 

### v. Uncle Sam 

### & Associates, 

### lnc.,295 S.W.3d 27 (Tex. App. 

## - Houston 

### [1" Dist.] 2009, 

### pet. denied)

## - 21 month delay 

### in filing motion and motion was

### filed after movant had received respondent's discovery, 

### but before movant had provided discovery responses and documents

### to respondent. The

### trial court even abated the hearing on 

### the motion 

### to compel 

### arbitration

### to allow movant 

### to respond 

### to the discovery, and movant failed to properly do so, atwhich point the

### trial court denied the 

### motion. "Armed 

### with discovery provided 

### by Uncle Sam and facing a looming deadlineto produce discovery requested by 

### Uncle Sam, 

### the Okorafors 

### tried

### to have

### it bothways and moved to compel 

### arbitration." Okorafor 

### at

### 40. As 

### to 

### prejudice: "Because the 

### Okorafors 

### had 

### not complied coffespondingly 

## with Uncle Sam's requested discovery, 

### Uncle Sam

### would be essentially handicapped by 

### having

### to arbitrate

### without benefit

### of any discovery responses from 

### the Okorafors, 

### including potentially deemed 

### admissions." 

### Id. at

### 4I. The 

### trial court even deferred

### on 

### ruling on 

### the Okorafors' motion to arbitrate and gavethem a

### week's extension 

### to answer discovery, and, 

### at a subsequent 

### hearing 

### the

### trial court determined, 

### "the responses provided 

### within that week were incomplete, missing, inadequate, and thus 

### 'deficient."' 

## Id. The Houston Court

### of Appeals agreed

### with the 

### trial court that, 

### "To compel 

### Uncle Sam

### to arbitrate, thus hampered by a lack of knowledge 

### of the Okorafors' case,would result 

### in an 

### 'unfair advantage' to the 

### Okorafors." Id. These Courts 

### of Appeal cases provided by Appellee further push toward the inescapable 

### conclusion

### thatAppellant 

### did not impliedly waive 

### the arbitration clause 

### by substantially invoking the 

### litigation processto the extremely high degree required.

15

## ilI. AppnT,T.nB HAS NoT SHowN LBGAL PREJUDICE SUFFICIENT F.oRA FINDING OF AN IMPLIED WAIVER OFTHE ARBITRATION CLAUSE. 

### The sum

### total

### of Appellee's evidence 

### of prejudice 

### is that Appellee has incurred attorney's fees between $101,000 and $104, 000 

### "on the Archer Western 

### litigation," plus 

### Mr. Rubinson's January 2018 invoice.36 

### Incidentally, as can be

seen at RR. 20, lines 16- 22,Appellee argues thatthis does not include the costs

### of 

### it taking depositions 

### of Appellant's personnel 

### afew weeks 

### prior 

### to the hearing, which 

### it claims should beadded. Courts are clear - costs incurred by a non-movant 

### to obtain discovery cannot and should not be considered 

### in the prejudice analysis. 

### "[A] partywho requests lots 

### of discovery 

### is not prejudiced 

### by getting 

### it Mr. Haymond did not attempt any segregation 

### of fees whatsoever. 

### During cross-examination, 

### Mr. Haymond admitted he could not provide any 

### more 

### detail, including he could 

### not even 

### break 

### down as

### to how much 

### of the amount was due

### to Beaird 

### Drilling, the former 

### Plaintiff in this suit, and how much


### was due

### to Archer 

### Western. 

### Nor did he break down 

### how much was due to Appellee's 

### affirmative actions againstthe other parties to the case. 

### Q. And asfar asthis lawsuit heretoday, how doesthat 101

### to 104,000 break down as between defending against 

### Beaird's claims versus prosecuting and defending theArcher Western claims?

'6 RR atpg.20, lines 7-22;andpg.2I,lines2I-25. 

## " Pnrry Homes,258 S.W.3d at 600 (emphasis in original). See also Ellman,4l9 S.W.3d at 522 ("The discovery initiated by JC does not provide a basis for finding prejudice.").

16

## A. So

### just like 

### I said, it's the 

### lawyers' 

### bill per case, and I

### just added

### all the

onesthat saidArcher Western. 

## a. So

### you can't 

### tell me 

### how much 

### of those fees 

### are related

### to Beaird specifically? 

## A. I didn't. 

### I wasn't asked to providethat information 

# a. Okay.

### And would

### you agree 

### with me Beaird 

### Drilling has been very aggressive in its prosecution of this case? 

### A. Not toward us. 

### Q. How about towards Archer Western? 

## A. Yeah, a

### lot of - - 

### I saw a lot of paper 

### flying to Archer. 

## a. And every deposition that Beaird has noticed 

### in the case against Archer Western, against

### the Lennar entities, against

### Mr. Allums, 

### your attorneys have attendedthose depositions, correct? 

### A. Damian attended the

### first few solely. 

### Q. You've always had an attorney present? 

### A. Yes, sir.38 

### As detailed atpages 31 

### - 37

### of Appellant's 

### Brief, this is simply insufficient evidence 

### to uphold 

### a finding 

### of prejudice sufficient 

### to overcome

### the extremely high burden

### of showing an implied waiver of an arbitration clause

38RR aI"pg.25,lines 1I-25; and pg. 26,lines 1- 13 

### t1

### IV Appnr,r,nNT HEREBy 

### wrrHDRAws 

## rrs Issun 

### No. 1

## - THn rRrAL couRT

ERRED (ono

,ALTERNATTvELv, ABUSED 

### ITS 

### orscnnrron) 

### rN DENvING 

### ARcnnn WnsrnnN's 

### MotloN To Sra.v 

### rnn PnocEEDING ANDTo Conmpr, AnnTTn,tTIoN As THE ARBITRATIoN CLAUSE ITSELF PROHIBITS wAIvER. 

### The clause 

### at issue

### states: "Subcontractor 

### waives

### to the fullest extent permitted by law any objection thatthey may now or may hereafter have to having arbitration proceedings conducted 

### in the state

### or United States

### territory 

### in which the Project is located, including any claim that 

### it is an inconvenient forum 

### for such 

### arbitration 

### or court 

### proceedings." Appellant's reading 

### of this clause 

### was that "conducted 

### in the state 

### or United States

### territory 

### in which the Project 

### is located" simply was part of the term "arbitration proceedings;" i.e., "arbitration proceedings conducted 

### in the state 

### or United States

### territory 

### in which the Project 

### is located." 

### Appellant concedes 

### Appellee's reading, that 

### this 

### is a waiver about objecting to forum location, is a more logical reading of the clause, and herebywithdraws Issue 

### No. 1. 

### PRAYER WHEREFORE, PREMISES CONSIDERED, Archer Westem Construction, 

### LLC hereby requeststhatthis Court reverse the order of the

### Trial Court and render
an 

### order staying

### the underlying proceedings and 

### compelling arbitration between 

### the remaining parties

### to this case 

### - Archer Westem, 

### STI, and 

### Hanover. Archer Western Construction, 

### LLC further prays

### for such other and further 

### relief, at law and in equity, to which 

### it may show 

### itselfjustly entitled 

### l8Respectfully submitted, 

### PECKAR 

### & ABRAMSON, P.C. By: /s/ Paulo Flores Paulo Flores State Bar 

### No. 07164447 pflores@pecklaw.com 

### Timothy D. Matheny State Bar 

### No. 24000258 tmatheny@pecklaw.com Tracey 

### L. Williams State Bar 

### No. 24031954 twi I I iams @p ecklaw. com 8080 

### N. Central Expressway 

### suite 1600, 

### LB 65 Dallas, Texas 75206-1819 

### (214) 523-5 100 Telephone (21

### 4) 521 -4601 Facsimile 

### ATTORNEYS FOR

### APPELLANT

t9

### CERTIFICATE OF 

### SERVICE



## I hereby

### certifl' that on 

### this 

### the

## 2l't day

### of May, 2018, a

### true and correct copy 

### of the above foregoing instrument was served upon 

### all counsel 

### of record in accordance

### with the Texas Rules of Appellate Procedure.

/s/ Paulo Flores Paulo Flores



### CERTIFICATE OF 

### COMPLIANCE 

## In compliance 

## with Rule 9.4(iX3) 

## of the Texas 

### Rules

## of Appellate Procedure,

## I hereby 

### certifr that there 

### are 5,138 

### words

### total 

## in the foregoing document, according

### to the 

### Word count, 

### excluding those words permitted 

### to be excluded by Rule 

### 9.4(iX1) of the Texas Rulesof Appellate Procedure.

/s/ Paulo Flores Paulo Flores

20