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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

TRULY NOLEN OF AMERICA, INC.,

 Appellant,

v.

OMAR MARTINEZ,

 Appellee.

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No. 08-19-00118-CV

Appeal from the

327th District Court 

of El Paso County, Texas 

(TC# 2017DCV3006) 

CONCURRING OPINION

Does waiting eighteen months to urge a motion to compel arbitration after a lawsuit is filed 

sufficiently evidence the “intentional relinquishment” of the right to rely on the arbitration clause? 

Or stated more specifically, does it show the substantial invocation of the judicial process when 

during that same period, none of the party or fact witnesses were deposed, no dispositive motions 

were filed, and the parties largely exchanged paper discovery and collected business records

(which would be equally useful in arbitration)? The majority says yes. If we were writing on a 

clean slate, I would grudgingly say no. I concur in the Court’s judgment, however, because our 

district’s precedent would seem to compel it.1 I write separately to express some misgivings with 

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I also fully concur in the majorities’ holding that the parties entered into a valid arbitration agreement. 
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that precedent. But nothing written here should be read to condone the delay and timing of the 

motion to compel arbitration in this case. Arbitration is advertised to be a quicker and more 

efficient tool to dispose of disputes, and needlessly waiting eighteen months to invoke the 

arbitration undermines that purpose. 

Four years ago, this Court addressed a remarkably similar fact pattern to the one before us 

today. In El Paso Healthcare System, Ltd. v. Green, the defendant waited nineteen months to 

assert its arbitration rights. 485 S.W.3d 227, 229 (Tex.App.--El Paso 2016, pet. granted, judgm’t 

vacated w.r.m.). During that time period, like here, each party served and responded to paper 

discovery, and they agreed to a scheduling order with a trial setting. Id. at 230-31. And like this 

case, the defendant filed no dispositive motions. Unlike this case, the defendant allowed two of 

its own witnesses to be deposed, and served, but withdrew a notice of deposition on the plaintiff. 

Within a few months of the trial date, and a little more than an hour after a motion to compel was 

filed against it, the defendant moved to compel arbitration. 

In Green, this Court affirmed the denial of that defendant’s right to arbitrate based on the 

same waiver theory advanced here. The defendant then filed a petition for review, but because the 

parties settled on appeal, the Texas Supreme Court never had to the review the merits of our 

decision. Instead, the petition for review was granted and our judgment, but not our opinion, was 

vacated. That would leave the opinion intact for our seventeen counties. See Houston Cable TV, 

Inc. v. Inwood W. Civic Ass’n, 860 S.W.2d 72, 73 (Tex. 1993) (noting distinction between vacating 

court of appeals’ judgment and its opinion, and noting the precedential effect to be the same as a 

writ dismissed case); James Hambleton, Notations for Subsequent Histories in Civil Cases, 65 Tex. 

B.J. 694 (2002) (noting when the court of appeals opinion is not vacated, case has the precedential 
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value of a petition dismissed case, meaning only that the Texas Supreme Court has not reviewed 

the merits). 

The facts of this case are modestly less compelling than Green, but not sufficiently so that 

I could meaningfully distinguish the case without some fine hair splitting. Thus, I feel compelled 

to concur in the ultimate disposition of this case. But in my view, and were I not bound by Green,

the record here is insufficient to meet the “high hurdle” for a waiver claim that the Texas Supreme 

Court requires. Perry Homes v. Cull, 258 S.W.3d 580, 589-90 (Tex. 2008) (“We have said on 

many occasions that a party waives an arbitration clause by substantially invoking the judicial 

process to the other party’s detriment or prejudice,” but “[d]ue to the strong presumption against 

waiver of arbitration, this hurdle is a high one.”) (footnotes omitted).

DISCUSSION

Appellant, Truly Nolan, carried the initial burden to (1) establish the existence of a valid 

arbitration agreement, and (2) show that Omar Martinez’s claims fell within the scope of the 

agreement. See In re AdvancePCS Health L.P., 172 S.W.3d 603, 605 (Tex. 2005). Because this 

Court concludes it met that burden, Martinez carries the burden to establish a valid defense to the 

agreement. Id. at 607. Waiver is one such defense. And in the context of this dispute, the question 

is whether Truly Nolan “substantially invoked” the judicial process such that its litigation conduct 

is so inconsistent with the arbitration right that it clearly demonstrates an intentional 

relinquishment of that right. G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 514 

(Tex. 2015). When the relevant facts are undisputed, the question of whether a party has waived 

its right to arbitrate is a question of law. Id. at 511; Perry Homes, 258 S.W.3d at 598 & n.102.

Our Court has teased out of the Texas Supreme Court’s Perry Home decision thirteen 

factors that bear on that question. See Ellman v. JC Gen. Contractors, 419 S.W.3d 516, 519-20 
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(Tex.App.--El Paso 2013, no pet.) (listing those factors). The majority opinion has focused on 

several of those factors, including the (1) length of the delay before the party invokes the right, (2) 

whether the party waits until the eve of trial to invoke the right, and (3) the amount of discovery 

conducted while in the judicial system. My view of those factors differs somewhat from my 

colleagues.

There is no question that Truly Nolan waited eighteen months to invoke the arbitration 

clause and offered no reason for that delay. That factor cuts against its claim, but similar delays 

by themselves have not established waiver of arbitration rights. See G.T. Leach Builders, 458 

S.W.3d at 512-13 (17-month delay); Richmont Holdings, Inc. v. Super. Recharge Sys., L.L.C., 455 

S.W.3d 573, 575-76 (Tex. 2014) (19-month delay); In re Vesta Ins, Group, Inc., 192 S.W.3d 759, 

763 (Tex. 2006) (two-year delay). 

The majority is also more impressed by the amount of discovery below than am I. The 

record shows that Martinez served written discovery with its petition, which Truly Nolan 

answered. Truly Nolan also served its own discovery, which included eighteen interrogatories, 

eleven requests for production, and eight requests for admissions. Other than the admissions, the 

discovery requests were standard questions served in almost any wrongful termination lawsuit. 

Truly Nolan also served three notices of deposition on written questions to records custodians to 

prove up either employment records or police records. Martinez moved to quash the notices 

because the records invaded his privacy and constituted attorney work product. There is no 

indication that motion was ever set for hearing or ruled upon. Martinez also served one follow-up 

request for production, asking for a copy of what was eventually produced at the depositions on 

written questions. These kinds of requests are common at the outset of litigation. None of the 

lawyers would have even appeared at the depositions on written questions. The lawyers did 
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communicate by email in February, July, August, and September 2018, and then again in February 

2019 to set up depositions. But no depositions were ever set, no fact or expert witness was ever

deposed. No dispositive motion was ever filed. Save and except for serving written discovery and 

the notices of deposition on written questions, any affirmative action was initiated by Martinez. 

Otherwise, Truly Nolan only responded to discovery as required by our discovery rules.

This level of discovery does not show waiver. See G.T. Leach Builders, LLC, 458 S.W.3d 

at 514 (a defendant needs discovery information to decide how to defend the suit and limited 

written discovery to defend a suit can be done without waiving arbitration rights); see also In re 

Fleetwood Homes of Texas, L.P., 257 S.W.3d 692, 694-95 (Tex. 2008) (a party does not waive 

arbitration by serving one set of written discovery); EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 

90 (Tex. 1996) (holding that propounding interrogatories and production requests, noticing one 

deposition and agreeing to reset a trial date did not amount to a waiver of arbitration); In re Bruce 

Terminix Co., 988 S.W.2d 702, 704 (Tex. 1998) (holding that propounding one set of eighteen 

interrogatories and nineteen production requests does not waive arbitration rights).

The majority is also impressed by the timing of the motion to invoke arbitration. And 

indeed, invoking the right on the eve of trial can be an important factor. Perry Homes, 258 S.W.3d 

at 584 (finding waiver when right was asserted four days before trial). The record here shows that 

on July 10, 2018, the trial court entered a scheduling order setting the case for trial on April 16, 

2019. Discovery needed to be completed by March 16, 2019. Truly Nolan’s motion to compel 

arbitration was filed March 12, 2019. But the record hardly shows that the parties were really 

poised to try the case at that time.2

2 At the hearing on the motion to compel arbitration, Truly Nolan’s counsel stated, “I would submit to you, Your 

Honor, that neither party is ready for a trial setting in April of 2019.” Martinez’s counsel equivocated: “Your Honor, 

we’ve gone to trial -- and I’m not saying we are or we’re not going to go to trial on April 16th, but parties have gone 

to trials without having taken depositions. Now, I don’t know if that’s the case. This may be the case; it may not.”
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To be sure, we should view these questions on a case-by-case basis, considering the totality 

of the circumstances. But in doing so, I try and peg the facts of this case up against the continuum 

of cases failing to support waiver. The Texas Supreme Court summarized a listing of its cases in 

Richmont Holdings, Inc. v. Super. Recharge Sys., L.L.C., 455 S.W.3d 573 (Tex. 2014) as follows: 

Kennedy Hodges, L.L.P. v. Gobellan, 433 S.W.3d 542, 544–45 (Tex. 2014) (per 

curiam) (law firm did not waive right to arbitrate a fee dispute with former clients 

by litigating with a former associate); 

In re Fleetwood Homes of Tex., L.P., 257 S.W.3d 692, 694 (Tex. 2008) (per curiam) 

(defendant did not waive by “failing to pursue its arbitration demand for eight 

months while discussing a trial setting and allowing limited discovery”); 

In re Citigroup Global Mkts., Inc., 258 S.W.3d 623, 625–26 (Tex. 2008) (per 

curiam) (defendant did not waive arbitration by removing case to federal court and 

acceding to remand seven months later before demanding arbitration); 

In re Bank One, N.A., 216 S.W.3d 825, 827 (Tex. 2007) (per curiam) (defendant 

did not waive arbitration by moving to set aside a default judgment, requesting a 

new trial, and waiting eight months to move to compel arbitration); 

In re D. Wilson Constr. Co., 196 S.W.3d 774, 783 (Tex. 2006) (contractors did not 

waive arbitration by suing to preserve evidence and cross-claiming for indemnity 

in a separate suit, absent a showing that their actions detrimentally affected the 

defendant); 

In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 763 (Tex. 2006) (per curiam) 

(defendants did not waive arbitration by litigating for two years, especially when 

the plaintiff initiated more discovery requests than he received); 

In re Serv. Corp. Int’l, 85 S.W.3d 171, 174–75 (Tex. 2002) (per curiam) 

(defendants did not waive arbitration by supporting plaintiffs’ inclusion in a federal 

class action whose members were not subject to arbitration, and moving, inter alia,

to dismiss in that action); 

In re Bruce Terminix Co., 988 S.W.2d 702, 704 (Tex. 1998) (per curiam) (defendant 

did not waive arbitration by its delay and discovery requests, when the responses 

were insufficient to show prejudice); 

EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 89–90 (Tex. 1996) (per curiam) (in the 

absence of a showing of prejudice, defendants did not waive arbitration by, e.g.,

requesting discovery and waiting ten months to ask for arbitration); 

Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 898–99 (Tex. 1995) (per curiam) 

(defendants did not waive arbitration by moving to strike an intervention, seeking 

and resisting discovery, and failing to timely seek mandamus review).
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Id. at 575 n.1 (bullet points added). I contrast these cases with LaLonde v. Gosnell, No. 16-0966, 

2019 WL 2479172, at *1 (Tex. June 14, 2019) where a majority of the court upheld a finding that 

an engineer waived the right to insist on the plaintiff filing a certificate of merit. The engineer did 

not seek dismissal until 1,219 days after the suit was filed and almost two years after the engineers 

answered. The engineers participated in discovery until the discovery deadline passed, and filed 

motions seeking to shift responsibility to third parties. Because our case does not fall that far along 

the spectrum, and were we writing on a clean slate, I would find the circumstances do not show an 

intentional relinquishment of the right to arbitrate.

The claim of prejudice also gives me pause. Waiting to file a motion to arbitrate until the 

eve of trial could trigger the kind of prejudice that would sustain a waiver claim. Any trial attorney 

knows that many legal tasks are backloaded into the final days or week just prior to trial: reviewing 

jury sheets, final preparation and interviews of witnesses, drafting motions in limine, making 

deposition “cuts”, and scripting examinations, openings, and closings. Time spent on many of 

these tasks is largely wasted when a trial setting is passed. And if this record had shown that 

Martinez’s attorneys had substantially performed these kinds of tasks, I would not hesitate to find 

prejudice. But as noted above, the record does not show the parties were actually gearing up for 

trial, nor that any of these tasks were actually performed. None of the written discovery sought 

indicates that it would be useful only in litigation, but not in an arbitration. Beyond that is the 

inherent prejudice of delay, which is worthy of consideration, but not controlling.

Summarizing, while I am uncomfortable with Green, it is the precedent of this Court, and 

outcomes should not change simply because of a panel change.3 Accordingly, I concur in the 

judgment of the Court.

3 And of note, Martinez’s waiver argument at the hearing below expressly referenced and relied on the Green decision.
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JEFF ALLEY, Chief Justice

February 26, 2020