Foley & Lardner LLP, Successor-In-Interest to Gardere Wynne Sewell, LLP, Timothy Spear, James G. Munesteri, and Sharon M. Beausoleil v. Stephen H. Dernick and David D. Dernick

Opinion issued April 30, 2026

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-25-00109-CV
———————————
FOLEY & LARDNER LLP, SUCCESSOR-IN-INTEREST TO GARDERE
WYNNE SEWELL, LLP, TIMOTHY SPEAR, JAMES G. MUNISTERI,
AND SHARON M. BEAUSOLEIL, Appellants
V.
STEPHEN H. DERNICK AND DAVID D. DERNICK, Appellees

On Appeal from the 269th District Court
Harris County, Texas
Trial Court Case No. 2021-77937

OPINION

This lawyer-client case presents an issue about waiver of the right to arbitrate.

The engagement letter has an arbitration clause, but the clients broke that promise

and went directly to court.
The lawyers then did the following:

• They demanded arbitration even before filing an answer, but to
no avail (December 2021).
• They followed up on the arbitration demand with a combined
answer and motion to compel arbitration and for stay (December
2021).
• A month later—under the strict timeline prescribed by the
legislature—they moved to dismiss under the TCPA, subject to
the motion to compel arbitration (January 2022).
• A few weeks after that, they persuaded the judge to grant the
TCPA motion and dismiss the clients’ claims (March 2022).

When the clients appealed, this Court reversed the TCPA ruling and remanded for

further proceedings in August 2024. On remand, the lawyers supplemented the

motion to compel arbitration and set it for a hearing. But the clients argued that the

lawyers had now missed the train to arbitration.

Neither side has identified a case quite like this one. But the party asserting

waiver “bears a heavy burden of proof to show the party seeking arbitration has

waived its arbitration right,” and the presumption against waiver “governs in close

cases.” RSL Funding, LLC v. Pippins, 499 S.W.3d 423, 430 (Tex. 2016) (per

curiam). The burden has been said to be even heavier where the party seeking

arbitration demands arbitration at or prior to the suit commencing. See Polyflow,

L.L.C. v. Specialty RTP, L.L.C., 993 F.3d 295, 307 (5th Cir. 2021). That heavy

burden has not been met. In our view, the arbitration train was delayed but not

missed. In this case, the lawyers had two tools at their disposal: their contractual
2
right to arbitrate, and their statutory right to seek dismissal (on a short timeline)

under the TCPA. They pursued both—and on this record, they did not waive their

right to arbitrate.

We reverse the trial court’s order denying the lawyers’ motion to compel

arbitration.

Background

In 2013, four minority shareholders in a corporation hired Gardere Wynne

Sewell LLP to help with certain legal matters. The engagement letter devotes an

entire section to arbitration. That section begins:

Mediation/Arbitration

In the event of any dispute or controversy regarding or arising
out of our representation of you, it is agreed that the same shall be
subject to mediation before a mutually-agreeable mediator. If the
mediation is unsuccessful, or if we are unable to agree upon a mediator
within thirty days after the dispute arises, then the dispute shall be
subject to binding arbitration at Houston, Texas. The arbitration shall
be administered by the American Arbitration Association in accordance
with its then current rules and procedures.

It then details the pros and cons of arbitration. The clients signed the letter on a page

that starts with the words: “THIS LETTER CONTAINS AN AGREEMENT TO

RESOLVE DISPUTES BY ARBITRATION.”

3
The firm took on the engagement, which lasted for years and involved details

that we have summarized elsewhere.1 By November 2021, two of the clients felt that

the firm had done them wrong, so they sued the firm and three of its lawyers. They

alleged that the arbitration clause they signed was not “adequately disclosed.” We

will refer to all the defendants together simply as Foley.

The procedural history matters greatly to the issue of waiver, so we will lay it

out in some detail. On December 13, 2021, Foley’s counsel sent the clients’ counsel

a letter noting that the 2013 engagement letter contained an arbitration clause. He

asked whether the clients would agree to stay the litigation and advance their claims

in arbitration. “Absent such an agreement, Foley shall file an application to compel

arbitration and to stay all judicial proceedings.”

No such agreement was forthcoming, and a few days later Foley moved to

compel arbitration in a document entitled “Application to Compel Arbitration and

Stay Proceeding” that also contained an original answer made “subject to” the

motion to compel. It did not set the motion for a hearing.

In January 2022, Foley filed a TCPA motion, entitled “Defendants’ Motion to

Dismiss Under Tex. Civ. Prac. & Rem. Code § 27.003.” On page 1, Foley stated that

1
See Dernick v. Foley & Lardner LLP, No. 01-22-00251-CV, 2024 WL 3941011, at
*1–4 (Tex. App.—Houston [1st Dist.] Aug. 27, 2024, no pet.) (mem. op.).
4
it “expressly preserves and does not waive its right to arbitrate any claims not

ultimately subject to dismissal.”

As part of the effort to reserve its rights to arbitrate, Foley cited the TCPA’s

short deadlines as a reason for invoking the statute at the beginning of the lawsuit:

“[A] litigant must assert its right to dismissal in court no later than 60 days after

service of the action, a hearing on such a motion must be set no later than 60 days

after service of the motion . . . and the court must rule on such a motion no later than

the 30th day after the hearing on such a motion concludes.” To support its view that

a dismissal motion need not result in waiver, Foley cited In re Vesta Insurance

Group, Inc., 192 S.W.3d 759, 764 (Tex. 2006) (per curiam), with a parenthetical

stating, “motion to dismiss for lack of standing does not sufficiently invoke judicial

process to overcome strong presumption against waiver.”

On March 11, 2022, the clients filed a response to the TCPA motion. They

regarded the TCPA motion as a tactic intended “solely to delay” and brought by the

defendants “because they know that the TCPA dismissal mechanism is arguably not

available to them in arbitration.” The clients contended that the motion was frivolous

and that the court should award them fees.

On March 21, 2022, the trial court sided with Foley and granted the TCPA

motion, dismissing the claim and awarding Foley its fees and costs. The clients

appealed to this Court. We abated the appeal pending a supreme court decision in

5
another lawyer liability case with a TCPA issue. After that decision, we lifted the

abatement, reversed the TCPA ruling, and remanded for further proceedings. See

Dernick v. Foley & Lardner LLP, No. 01-22-00251-CV, 2024 WL 3941011, at *15

(Tex. App.—Houston [1st Dist.] Aug. 27, 2024, no pet.) (mem. op.). By the time the

mandate issued on December 9, 2024, about two years had passed.

The trial court issued a new docket control order on December 18, 2024. On

January 6, 2025, Foley filed a notice of hearing and set the motion to compel for an

oral hearing on February 7, 2025. The trial court denied the motion, and Foley then

brought this appeal.

Waiver of Right to Arbitrate

The parties agree on the legal framework but disagree about its application. In

particular, everyone agrees that a party may waive the right to compel arbitration by

substantially invoking the judicial process.

A. Background Legal Principles

The background principles are well settled. A party seeking to compel

arbitration must establish (1) the existence of a valid arbitration agreement and

(2) that the claims fall within the scope of the agreement. Bonsmara Nat. Beef Co.

v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d 385, 397 (Tex. 2020). If the party

seeking arbitration satisfies its initial burden, the burden shifts to the party resisting

6
arbitration to present evidence supporting a defense to enforcement of the arbitration

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

“Absent a valid defense to arbitration, ‘the trial court has no discretion but to

compel arbitration and stay its proceedings once the existence and application of the

[arbitration] agreement has been shown.’” Northpointe LTC, Ltd. v. Durant, No. 01-

22-00215-CV, 2022 WL 17835223, at *3 (Tex. App.—Houston [1st Dist.] Dec. 22,

2022, no pet.) (mem. op.) (quoting In re Autotainment Partners Ltd. P’ship, 183

S.W.3d 532, 534 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding)).

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

discretion. Henry, 551 S.W.3d at 115. “A trial court abuses its discretion if it acts in

an arbitrary or unreasonable manner or acts without reference to guiding rules or

principles.” Buzbee v. Terry & Thweatt, P.C., No. 01-23-00123-CV, 2023 WL

7311212, at *2 (Tex. App.—Houston [1st Dist.] Nov. 7, 2023, pet. denied) (mem.

op.). When the relevant facts are undisputed, as they are here, whether a party waived

its right to arbitrate is a question of law that we review de novo. See id.; G.T. Leach

Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 511 (Tex. 2015); In re Serv.

Corp. Int’l, 85 S.W.3d 171, 174 (Tex. 2002) (orig. proceeding) (per curiam).

B. Implied Waiver of the Right to Arbitrate

Implied waiver by litigation conduct is an affirmative defense to enforcement

of an arbitration provision. Henry, 551 S.W.3d at 115. A party seeking to establish

7
implied waiver of the right to arbitrate must establish that the party moving for

arbitration substantially invoked the judicial process inconsistent with the right to

compel arbitration. See G.T. Leach Builders, 458 S.W.3d at 511–12.

“The right to arbitrate can be waived by conduct—but not easily.” Thomas

Craig Constr., Inc. v. Park Square Condo. Owner’s Ass’n, No. 01-22-00918-CV,

2025 WL 1759012, at *1 (Tex. App.—Houston [1st Dist.] June 26, 2025, no pet.)

(mem. op.). A party seeking to establish waiver by conduct has a “heavy burden.”

RSL Funding, 499 S.W.3d at 430. The burden is even heavier if arbitration is

demanded at or before litigation starts. See Polyflow, 993 F.3d at 307.

The test for waiver is a totality of the circumstances test, as we have explained

many times. Our recent opinion in Thomas Craig is typical. There we stated that

whether a party waives its right to arbitration by substantially invoking the judicial

process depends on the totality of the circumstances. 2025 WL 1759012, at *6. We

decide the issue on a case-by-case basis taking into consideration a number of non-

exclusive factors, including:

• how long the movant waited before moving to compel
arbitration;
• the reasons for the movant’s delay;
• whether and when, during the period of delay, the movant knew
of the arbitration agreement;
• how much discovery the movant conducted before moving to
compel arbitration, and whether that discovery related to the
merits;
8
• whether the discovery would be unavailable or useful in
arbitration;
• whether the movant asked the court to dispose of claims on the
merits;
• whether the movant asserted affirmative claims for relief in
court;
• the extent of the movant’s engagement in pretrial matters related
to the merits (rather than to arbitrability or jurisdiction);
• the time and expense the parties committed to the litigation;
• whether activity in court would be duplicated in arbitration; and
• when the case is set to be tried.

Id. (citing G.T. Leach Builders, 458 S.W.3d at 512, and Perry Homes v. Cull, 258

S.W.3d 580, 590–92 (Tex. 2008)).

In general, however, no single factor is dispositive. RSL Funding, 499 S.W.3d

at 430. Nor must all or most of these factors be present to support waiver. See Perry

Homes, 258 S.W.3d at 591. Courts look to the specifics of each case. Henry, 551

S.W.3d at 116.

To illustrate how we have applied the totality test and reached varying results,

our Thomas Craig opinion cited a long list of recent cases.2 Two of those cases—

2
See GRGP, Inc. v. Black Forest Holdings, Inc., No. 01-23-00314-CV, 2023 WL
8459522, at *3–6 (Tex. App.—Houston [1st Dist.] Dec. 7, 2023, no pet.) (mem. op.)
(finding waiver); Buzbee v. Terry & Thweatt, P.C., No. 01-23-00123-CV, 2023 WL
7311212, at *4–5 (Tex. App.—Houston [1st Dist.] Nov. 7, 2023, pet. denied) (mem.
op.) (waiver); Courtright v. Allied Custom Homes, Inc., 647 S.W.3d 504, 516–22
(Tex. App.—Houston [1st Dist.] 2022, pet. denied) (waiver); Turnbull Legal Grp.,
PLLC v. Microsoft Corp., No. 01-20-00851-CV, 2022 WL 14980287, at *9–15
9
Buzbee v. Terry & Thweatt, P.C. and Turnbull Legal Group, PLLC v. Microsoft

Corp.—have some similarities to this case, so we will touch on those decisions

briefly before turning to the record.

Turnbull involved a dispute between a law firm and Microsoft. The law firm

did not immediately seek arbitration. Instead, it asked a trial court for injunctive

relief (to obtain the return of certain client files) and “then waited four months after

the trial court granted the injunctive relief to initiate arbitration proceedings.”

Turnbull, 2022 WL 14980287, at *15. The law firm also asserted claims for

affirmative relief and sought damages. Id. at *4. “Importantly, the Firm did not seek

a judicial ruling on the merits of its claims for affirmative relief, and the trial court

did not make an adverse ruling on the Firm’s claims before the Firm initiated

arbitration proceedings.” Id. at *15. This Court found no waiver, despite the firm’s

successful request for injunctive relief at the outset of the lawsuit. Id.

Notice that in Turnbull, the case did involve some aspects of “the merits.” In

granting injunctive relief, the trial court found “a probability of success on the

merits.” Id. at *5. And the court made some findings that were “relevant to the merits

of the Firm’s claims for conversion and breach of contract.” Id. at *14. The law firm

(Tex. App.—Houston [1st Dist.] Oct. 27, 2022, pet. denied) (mem. op.) (no waiver);
Archimedes, Inc. v. Russell, No. 01-21-00222-CV, 2022 WL 2024851, at *2–4 (Tex.
App.—Houston [1st Dist.] June 7, 2022, no pet.) (mem. op.) (waiver); Jetall Cos.,
Inc. v. Sonder USA Inc., No. 01-21-00378-CV, 2022 WL 17684340, at *12–14 (Tex.
App.—Houston [1st Dist.] Dec. 15, 2022, no pet.) (mem. op. on reh’g) (no waiver).
10
also sought discovery that was “relevant to the merits of the Firm’s claims for

affirmative relief.” Id. at *12, 15. Nevertheless, considering the totality of the

circumstances, this Court found no waiver. Id. at *15.

About a year later, we decided Buzbee. There a client hired the T&T law firm

and signed a contingent fee contract with an arbitration clause, but a day later the

client switched to Buzbee’s law firm, so the two firms ended up in a dispute about

the fees. 2023 WL 7311212, at *1–2. T&T sued Buzbee in court for tortious

interference with the fee agreement that contained the arbitration clause. Id. at *2.

Early in the suit, Buzbee moved to dismiss pursuant to the TCPA. Id. The trial court

denied the TCPA motion, and Buzbee appealed. Id. This Court affirmed. Id. Buzbee

petitioned for review, but without success. Id. Up to that point, nobody had ever

asked for arbitration—at all.

When proceedings resumed following the appeal process, Buzbee moved to

compel arbitration, “asserting for the first time that T&T was required to arbitrate.”

Id. “Buzbee did not raise the issue of arbitration or otherwise mention arbitration in

his answer to T&T’s suit, the TCPA motion, or [at] any point prior to the motion to

compel arbitration.” Id. at *2 n.2. We found waiver of the right to arbitrate. Id. at

*4–5. We reasoned that the factual circumstances showed an attempt to have it both

ways. Id. at *4. “In total, more than two years elapsed before Buzbee raised the issue

11
of arbitration.” Id. at *5. We added that failing to seek arbitration until after

proceeding in litigation to an adverse result is inevitably found to effect a waiver. Id.

These cases illustrate how the totality of the circumstances test can lead to

different results with only small changes to the various inputs that go into the overall

mix of factors.

C. Application to This Record

The parties disagree about how all these principles apply here. Foley says that

it “timely asserted its right to arbitrate at the outset, and it reiterated that right again

in its TCPA Motion.” It also “did not engage in any discovery, file any affirmative

claims for relief, invoke the TCPA’s automatic stay or interlocutory appeal

procedures, wait until the eve of trial to raise its arbitration right, or engage in any

other pretrial activities that have been present in other cases where a waiver has been

found.”

In Foley’s view, the clients’ argument in favor of waiver essentially boils

down to one and only one data point: “the fact that Foley filed a TCPA motion, and

nothing else.” And, it emphasizes, the right to seek dismissal under the TCPA was a

tool provided to it by the legislature—one with a stringent timeline requiring it to

move under the TCPA quickly and timely or waive its TCPA rights. So, it says, it

was in a catch 22 of trying to quickly and timely pursue both avenues available to it,

without waiving either (understanding of course that either could fail).

12
The clients see things differently. They do not comment on Foley’s pre-

answer demand for arbitration. They concede that Foley filed a motion to compel

early on, but they view that motion as legally insubstantial because it was not set

first for a hearing: “Although Foley filed its Application before its TCPA motion,

Foley did not move to have the trial court consider the Application first. Instead,

Foley filed its TCPA motion and set that motion for hearing first.” “The first motion

that Foley set for hearing and thus ‘moved on’ was its TCPA motion.”

We could go on with all the non-exclusive factors laid out by the supreme

court in Perry Homes and repeated by our Court in cases like Thomas Craig, but the

point has been made. Each side makes rational arguments, and each side offers

plausible distinctions between this case and the precedents cited by the other side.

The issue strikes us as a close one, but close cases go to arbitration.

Or to phrase that point in the language of waiver doctrine more generally, the

circumstances must “clearly” demonstrate an intent to waive the right at issue:

“[T]he universal test for implied waiver by litigation conduct is whether the party’s

conduct—action or inaction—clearly demonstrates the party’s intent to relinquish,

abandon, or waive the right at issue—whether the right originates in a contract,

statute, or the constitution. This is a high standard.” LaLonde v. Gosnell, 593 S.W.3d

212, 219–20 (Tex. 2019).

13
In light of the “heavy burden” to show waiver—a burden that falls “even more

heavily” in cases like this one, where the movant has demanded arbitration before

filing any papers in court, see Polyflow, 993 F.3d at 307 (quotation omitted)—we

conclude that the totality of the circumstances fall short of establishing waiver.

1. Most of the factors do not suggest waiver

Few of the non-exclusive factors that we listed in Buzbee and Thomas Craig

militate in favor of finding waiver here. Was the party who now wants to go to

arbitration “the plaintiff (who chose to file in court) or the defendant (who merely

responded)”? Buzbee, 2023 WL 7311212, at *4. It was the latter. Had it been the

former, the case for waiver would be stronger.

What about “the amount of discovery conducted?” Id. This record shows no

discovery. (Foley asserts that it engaged in no discovery, and that assertion has not

been contested.) Had there been profuse discovery, the case for waiver would be

stronger. Our decision in Thomas Craig pointed out how the American Arbitration

Association rules limit discovery, so in finding a waiver, we emphasized the

mountain of discovery that the movant had obtained in court. 2025 WL 1759012, at

*8–12. We quoted from the hundreds of discovery requests by the movant. Nothing

like that has happened here.

Virtually the only factors that arguably suggest waiver are the ones about

“how long the movant delayed before seeking arbitration” and “whether the movant

14
sought judgment on the merits.” See Buzbee, 2023 WL 7311212, at *4. These factors

undeniably deserve some weight, but they weigh less in favor of waiver here than

they did in Buzbee, as we shall now explain.

2. The factors relating to delay before “seeking arbitration” and
seeking judgment “on the merits” weigh less than they did in
Buzbee

Specifically, one factor that we examine is “how long the movant delayed

before seeking arbitration.” Id. Foley did not delay—at all—“before seeking

arbitration.” Foley invoked the arbitration clause early and often as the lawsuit got

underway. Within just days of the lawsuit being filed, two of the individual Foley

lawyers (Beausoleil and Munisteri) voluntarily accepted service pursuant to Rule of

Civil Procedure 119 and went out of their way to reserve “all rights they may have

to have this dispute submitted to binding arbitration.”

Just days after that reservation of rights, counsel for all the Foley defendants

sent opposing counsel a letter raising the arbitration clause. The letter quoted the

arbitration clause. The letter then urged that “all of the claims the Dernicks have

asserted in the Litigation remain subject to mandatory arbitration and the judicial

proceedings should be stayed pending the conclusion of arbitration.” It requested

confirmation from the clients’ side that the litigation “shall be stayed” and that the

dispute would go “through the arbitration process.” “Absent such an agreement,

15
Foley shall file an application to compel arbitration and to stay all judicial

proceedings.”

This demand squarely qualifies as seeking arbitration. It was not an effort to

have things both ways. It was an effort to have things one and only one way—

namely, the way that the clients agreed to in writing when they signed the

engagement letter. This effort obviously did not win assent from the clients, who

chose to break their promise, but it plainly amounts to “seeking arbitration.” So the

delay before “seeking arbitration” here is nothing like the multiyear lapse in Buzbee.

The clients argue that we should ask not when the motion to compel was filed,

but when it was set for a hearing. To begin with, in this inquiry, we have traditionally

looked at the motion’s filing date and recited the filing date in our opinions as the

relevant data point.3 (This is not to say that whether a party sets a motion for a

hearing is not sometimes relevant—even important—in a waiver inquiry. But that

alone does not carry the day here.)

At any rate, Foley began “seeking arbitration” even before it filed the motion.

Foley tried earnestly to persuade the clients to arbitrate even before Foley put its

3
See, e.g., Met Int’l Trading Co. v. 49North LLC, No. 01-24-00756-CV, 2025 WL
2413079, at *6 (Tex. App.—Houston [1st Dist.] Aug. 21, 2025, no pet.) (mem. op.)
(looking to date of motion to compel); GRGP, 2023 WL 8459522, at *4 (same);
Northpointe LTC, Ltd. v. Durant, No. 01-22-00215-CV, 2022 WL 17835223, at *9
(Tex. App.—Houston [1st Dist.] Dec. 22, 2022, no pet.) (mem. op.) (same);
Courtright, 647 S.W.3d at 517 (same).
16
answer on file, but that effort went nowhere. To disregard those efforts and to ask

only when Foley set the motion for a hearing would be to disregard a material part

of the story—especially because Foley did not have the option to just delay filing a

TCPA motion until its arbitration demand had been resolved (unlike a substantive

motion for summary judgment, for instance).

Then there is the question of asking the trial court for a ruling on the “merits”

of the case. TCPA proceedings can foreclose a trial on the merits but are not a legal

substitute for one:

• “The TCPA and cases interpreting it, in contrast, make clear that
a hearing on a TCPA motion to dismiss is not a trial on the
merits.” Sylvester v. Michael, No. 05-24-00360-CV, 2024 WL
4784400, at *7 (Tex. App.—Dallas Nov. 14, 2024, no pet.)
(mem. op.).
• “[A] TCPA motion to dismiss is not a trial on the merits and is
not intended to replace either a trial or the summary judgment
proceeding established by the Texas Rules of Civil Procedure.”
Doe v. Cruz, 683 S.W.3d 475, 488 (Tex. App.—San Antonio
2023, no pet.) (op. on reh’g) (quoting Stallion Oilfield Servs. Ltd.
v. Gravity Oilfield Servs., LLC, 592 S.W.3d 205, 215 (Tex.
App.—Eastland 2019, pet. denied)).
• A ruling under the TCPA “is not a merits determination.” Davis
v. Gulf Coast Auth., No. 11-19-00309-CV, 2020 WL 5491201,
at *12 (Tex. App.—Eastland Sept. 11, 2020, no pet.) (mem. op.).
• “Discovery is not permitted at all, unless the trial court finds
good cause for ‘specified and limited discovery relevant to the
motion.’” Sylvester, 2024 WL 4784400, at *7 (quoting TEX. CIV.
PRAC. & REM. CODE § 27.006(b)).

17
As Justice Wise has noted, a TCPA ruling does not entail a “full” adjudication of the

merits: “[T]he TCPA provides procedures and remedies for summary dismissal of

cases before a full adjudication of the merits takes place.” Reeves v. Harbor Am.

Cent., Inc., 631 S.W.3d 299, 307 (Tex. App.—Houston [14th Dist.] 2020, pet.

denied); see also In re Serv. Corp. Int’l, 85 S.W.3d at 175 (finding no waiver of right

to arbitrate: “Relators’ efforts in moving to dismiss [under federal Rule 12(b)(6)]

and staying discovery were to avoid litigation, not participate in it”).

To be sure, the TCPA does have a link to the merits, inasmuch as a TCPA

motion requires a “threshold testing of the merits.” HydroChem LLC v. Evoqua

Water Techs., LLC, 650 S.W.3d 6, 10 (Tex. App.—Houston [1st Dist.] 2020, pet.

denied) (quotation omitted); see Montoya Frazier v. Maxwell, — S.W.3d —, No.

02-23-00103-CV, 2025 WL 494699, at *27 (Tex. App.—Fort Worth Feb. 13, 2025,

pet. denied) (en banc) (“[A] TCPA dismissal is a merits judgment.”). But when

weighing various factors as part of a totality test, we should not treat a “threshold

testing of the merits” as carrying the same weight as a summary judgment motion or

the equivalent.

Conclusion

The burden to show waiver is always a heavy one. RSL Funding, 499 S.W.3d

at 430. The burden becomes heavier here because of the pre-answer demand for

arbitration. See Polyflow, 993 F.3d at 307; Steel Warehouse Co. v. Abalone Shipping

18
Ltd. of Nicosai, 141 F.3d 234, 238 (5th Cir. 1998); Sw. Indus. Imp. & Exp., Inc. v.

Wilmod Co., 524 F.2d 468, 470 (5th Cir. 1975) (per curiam). For the reasons given,

we find that burden unmet. The case should go to arbitration. We thus reverse the

denial of the motion to compel and leave it to the trial court to sign an appropriate

order that compels arbitration and orders a stay in the meantime.4 Our stay imposed

on April 8, 2025, shall terminate upon issuance of the mandate.

David Gunn
Justice

Panel consists of Justices Rivas-Molloy, Gunn, and Caughey.

Justice Rivas-Molloy, dissenting.

4
Although courts often speak of remanding in this situation, a remand is technically
inapt because the cause as a whole remains pending in the trial court. See, e.g.,
Chappell Hill Sausage Co. v. Durrenberger, No. 14-19-00897-CV, 2021 WL
2656585, at *5 n.6 (Tex. App.—Houston [14th Dist.] June 29, 2021, no pet.) (mem.
op.). What is before us is not the entire cause but one interlocutory order, which we
reverse.
19

Opinion issued April 30, 2026

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-25-00109-CV
———————————
FOLEY & LARDNER LLP, SUCCESSOR-IN-INTEREST TO GARDERE
WYNNE SEWELL, LLP, TIMOTHY SPEAR, JAMES G. MUNISTERI,
AND SHARON M. BEAUSOLEIL, Appellants
V.
STEPHEN H. DERNICK AND DAVID D. DERNICK, Appellees

On Appeal from the 269th District Court
Harris County, Texas
Trial Court Case No. 2021-77937

DISSENTING OPINION

This interlocutory appeal is the second appeal involving this suit for breach of

fiduciary duty filed by Appellees against their former law firm and some of its

lawyers—the Appellants. When Appellees first filed suit, Appellants filed a
combined original answer and motion to compel arbitration. Later, without taking

any action to set their motion to compel for hearing, Appellants moved to dismiss

Appellees’ claims under the Texas Citizens Participation Act (“TCPA”).1 Appellants

prevailed, securing a benefit they would not have been able to secure in arbitration:

dismissal of Appellees’ claims with prejudice and an award of more than $100,000

in attorneys’ fees and costs.

In the first appeal, we held the TCPA was not applicable. We reversed the trial

court’s dismissal of Appellees’ claims and remanded to the trial court for further

proceedings.2 On remand, Appellants set their motion to compel arbitration for

hearing for the first time. Concluding Appellants had waived their arbitration rights,

the trial court denied the motion and this second appeal ensued. The majority

concludes that Appellants did not substantially invoke the judicial process by

securing dismissal of Appellees’ claims with prejudice under the TCPA and thus

they did not waive their right to arbitration. I respectfully dissent.

Although Appellants filed a motion to compel arbitration with their answer,

they sat on their motion, seeking to pursue relief under the TCPA instead—a remedy

not available in arbitration. Appellants’ choice paid off. They secured a complete

1
See TEX. CIV. PRAC. & REM. CODE §§ 27. 001––.011 (“TCPA”).
2
See Dernick v. Foley & Lardner LLP, No. 01-22-00251-CV, 2024 WL 3941011
(Tex. App.—Houston [1st Dist.] Aug. 27, 2024, no pet.) (mem. op.).

2
victory by ending the litigation in court, foreclosing arbitration proceedings

altogether. It is difficult to imagine a clearer example of a party substantially

invoking the judicial process inconsistent with the right to compel arbitration than

one who seeks a benefit not available in arbitration to secure complete dismissal of

his opponents’ claims on the merits, with res judicata implications, and only seeks

to enforce its right to arbitration after reversal of the dismissal on appeal.

On this record, and in light of our decision in Buzbee v. Terry & Thweatt,

P.C.,3 I would conclude that Appellants waived their rights to arbitration. I would

affirm the trial court’s judgment.

Background

A full recitation of the facts leading to the parties’ dispute is set forth in this

Court’s earlier opinion in Dernick v. Foley & Lardner LLP, No. 01-22-00251-CV,

2024 WL 3941011, at *1 (Tex. App.—Houston [1st Dist.] Aug. 27, 2024, no pet.)

(mem. op.).

To summarize, in November 2021, Appellees (“Dernicks”) filed suit against

their former law firm and some of the firm’s attorneys (collectively, “Foley”)

asserting claims for breach of fiduciary duty, civil conspiracy, and aiding and

abetting. One month later, in December 2021, Foley filed a combined “Application

3
Buzbee v. Terry & Thweatt, P.C., No. 01-23-00123-CV, 2023 WL 7311212 (Tex.
App.—Houston [1st Dist.] Nov. 7, 2023, pet. denied) (mem. op.).

3
to Compel Arbitration and Stay Proceedings [and] Subject to that Application,

Defendant’s Original Answer” (“Motion to Compel”).4 Dernick, 2024 WL 3941011,

at *4. Foley alleged that the pending claims were subject to arbitration because the

engagement letter the Dernicks signed when they first retained Foley’s legal services

required binding arbitration in Houston, Texas for “any dispute or controversy

regarding or arising out of [Foley’s] representation.”

Although Foley filed its combined Motion to Compel and Original Answer in

December 2021, it took no action to set the Motion to Compel for submission or

hearing. Instead, on January 25, 2022, Foley filed a motion to dismiss under the

TCPA (“TCPA Motion”) seeking to dismiss the Dernicks’ claims with prejudice.

Foley argued that because the Dernicks’ legal action was based on and in response

to Foley’s “exercise of the right to petition,” dismissal was proper under the TCPA.5

Id. The Dernicks filed a response to the motion on March 11, 2022. And on March

4
Although Foley’s Motion to Compel is not included in the clerk’s record for this
appeal, it was included in the record for the first appeal. The Court may take judicial
notice of the motion in this appeal. See In re Seay, No. 05-23-00215-CV, 2023 WL
2494439, at *1 (Tex. App.—Dallas Mar. 14, 2023, no pet.) (mem. op.) (“We may
exercise our discretion to take judicial notice of the clerk’s record in relator’s related
appeal.”); In re Estate of York, 934 S.W.2d 848, 851 (Tex. App.—Corpus Christi-
Edinburg 1996, writ denied) (“[A] court may take judicial notice of its own records
in a case involving the same subject matter between the same, or practically the
same, parties.”).
5
The TCPA motion included the following sentence: “By asserting its procedural
rights to dismissal under Tex. Civ. Prac. & Rem. Code § 27.003, Foley expressly
preserves and does not waive its right to arbitrate any claims not ultimately subject
to dismissal.”

4
21, 2022, the trial court granted Foley’s TCPA Motion dismissing the Dernicks’

claims with prejudice and awarding attorneys’ fees and costs to Foley. Id. at *5.

In August 2024, we issued an opinion reversing the trial court’s judgment

concluding that the TCPA was not applicable to the Dernicks’ claims. We remanded

the case to the trial court for further proceedings. Id. at *14–15. On remand, Foley

filed a supplemental brief in support of its Motion to Compel and for the first time

set the motion for hearing. Foley argued in its supplemental brief that Texas public

policy favors arbitration and that the Dernicks and Foley were parties to a valid

arbitration agreement with respect to all claims asserted by the Dernicks. Foley

argued that it had not substantially invoked the litigation process by filing its TCPA

Motion because the Motion to Compel was its first filed pleading. It argued that

because it had invoked the TCPA only “defensively and in the alternative to its

arbitration demand, it [had] expressly preserved and []not waive[d]” its arbitration

application. And even if it had substantially invoked the judicial process, Foley

argued no prejudice had resulted to the Dernicks because Foley had not delayed in

filing its Motion to Compel, the Dernicks had not incurred substantial fees, and

arbitration would not compromise the Dernicks’ legal position on the merits of their

claims. Foley thus argued that arbitration should be compelled.

In their response, the Dernicks did not dispute the existence of a valid

arbitration agreement or that their claims fell within the scope of the agreement.

5
Rather, the Dernicks asserted waiver as a defense to arbitration. They argued that

Foley had not set its Motion to Compel for hearing until more than three years after

first filing the motion and only after suffering an adverse appellate ruling resulting

in reversal of the trial court’s order granting Foley’s TCPA Motion. The Dernicks

argued that Foley had substantially invoked the judicial process by seeking—and

obtaining—dismissal of their claims with prejudice and securing an award of more

than $100,000 in attorney’s fees under the TCPA. The Dernicks also argued that

Foley’s substantial invocation of the judicial process had resulted in prejudice

because the TCPA Motion and resulting appeal had caused them to incur fees and

expenses they otherwise would not have incurred and also forced them to

“prematurely marshal [their] proof.”

Foley replied arguing that “no case ha[d] ever held that a party who timely

asserts and preserves a right to arbitrate waives that right simply by pursuing a

motion to dismiss under the TCPA, without more.” (Emphasis in original.) It argued

that the filing of a TCPA motion “does not substantially invoke the judicial process

and waive arbitration, particularly where the movant contemporaneously asserts and

expressly preserves its arbitration rights.”

6
The trial court denied Foley’s Motion to Compel.6 This interlocutory appeal

ensued.7

Standard of Review and Applicable Law

A party seeking to compel arbitration must establish the (1) existence of a

valid arbitration agreement and (2) that the claims fall within the scope of the

agreement. Bonsmara Nat. Beef Co. v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d

385, 397 (Tex. 2020); Venture Cotton Coop. v. Freeman, 435 S.W.3d 222, 227 (Tex.

2014). If the party seeking arbitration satisfies its initial burden, the burden shifts to

the party resisting arbitration to present evidence supporting a defense to

enforcement of the arbitration provision. Henry v. Cash Biz, LP, 551 S.W.3d 111,

115 (Tex. 2018). Once the burden shifts to the nonmovant, a presumption exists in

favor of arbitration. Ellis v. Schlimmer, 337 S.W.3d 860, 862 (Tex. 2011); Garcia v.

Huerta, 340 S.W.3d 864, 869 (Tex. App.—San Antonio 2011, pet. denied). “Absent

a valid defense to arbitration, ‘the trial court has no discretion but to compel

arbitration and stay its proceedings once the existence and application of the

6
The trial court conducted a hearing on Foley’s Motion to Compel. The transcript of
the hearing is not in the appellate record. According to the Dernicks, no evidence
was presented at the hearing.
7
See TEX. CIV. PRAC. & REM. CODE § 171.098(a)(1) (providing party may appeal
judgment denying motion to compel arbitration made pursuant to Texas Arbitration
Act); Chambers v. O’Quinn, 242 S.W.3d 30, 31 (Tex. 2007) (noting Texas
Arbitration Act allows interlocutory appeals from orders that deny arbitration). The
parties do not dispute that the Texas Arbitration Act governs the present action.

7
[arbitration] agreement has been shown.”’ Northpointe LTC, Ltd. v. Durant, No. 01-

22-00215-CV, 2022 WL 17835223, at *3 (Tex. App.—Houston [1st Dist.] Dec. 22,

2022, no pet.) (mem. op.) (quoting In re Autotainment Partners, Ltd. P’ship, 183

S.W.3d 532, 534 (Tex. App.—Houston [14th Dist.] 2006, no pet.)).

Implied waiver by litigation conduct is an affirmative defense to enforcement

of an arbitration provision. Henry, 551 S.W.3d at 115; G.T. Leach Builders, LLC v.

Sapphire V.P., LP, 458 S.W.3d 502, 511–12 (Tex. 2015). A party seeking to

establish implied waiver of the right to arbitrate must establish that (1) the party

moving for arbitration substantially invoked the judicial process inconsistent with

the right to compel arbitration, and (2) the non-movant suffered detriment or

prejudice as a result. See id.; see also Thomas Craig Constr., Inc. v. Park Square

Condo. Owner’s Ass’n, No. 01-22-00918-CV, 2025 WL 1759012, at *1, 6 (Tex.

App.—Houston [1st Dist.] June 26, 2025, no pet.) (mem. op.) (“The right to arbitrate

can be waived by conduct—but not easily.”).

We review a trial court’s order denying a motion to compel arbitration for

abuse of discretion. Henry, 551 S.W.3d at 115 (citing In re Labatt Food Serv., L.P.,

279 S.W.3d 640, 642–43 (Tex. 2009)). “A trial court abuses its discretion if it acts

in an arbitrary or unreasonable manner or acts without reference to guiding rules or

principles.” Buzbee v. Terry & Thweatt, P.C., No. 01-23-00123-CV, 2023 WL

7311212, at *2 (Tex. App.—Houston [1st Dist.] Nov. 7, 2023, pet. denied) (mem.

8
op.). We “defer to the trial court’s factual determinations if they are supported by

[the] evidence but [we] review its legal determinations de novo.” Henry, 551 S.W.3d

at 115. When facts are undisputed, whether the right to arbitrate has been waived is

a question of law we review de novo. Id. (stating whether party has waived right to

arbitrate is question of law appellate courts review de novo).

Substantial Invocation of the Judicial Process

The parties do not dispute that there is a valid arbitration agreement or that

the Dernicks’ claims fall within the scope of the arbitration clause. Rather, the only

question before us is whether the Dernicks established Foley waived its right to

arbitration by substantially invoking the judicial process. I would conclude they did.

Whether a party has substantially invoked the judicial process “depends on

the totality of the circumstances.” G.T. Leach Builders, 458 S.W.3d at 512 (citing

Perry Homes v. Cull, 258 S.W.3d 580, 589–90 (Tex. 2008)). We examine the issue

on a case-by-case basis. Thomas Craig Constr., 2025 WL 1759012, at *6. The “wide

variety” of factors courts consider in determining whether the judicial process has

been “substantially invoked” include:

(1) how long the movant waited to compel arbitration;

(2) the reasons for the movant’s delay;

(3) whether and when, during the period of delay, the movant knew
of the arbitration agreement;

(4) how much discovery the movant conducted before moving to

9
compel arbitration and whether that discovery related to the
merits;

(5) whether the movant requested the court to dispose of claims on
the merits;

(6) whether the movant asked the court to dispose of the claims on
the merits;

(7) the extent of the movant’s pretrial activities related to the merits
(as opposed to arbitrability or jurisdiction);

(8) the time and expense the parties committed to the litigation;

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

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

(11) when the case is set for trial.

G.T. Leach Builders, 458 S.W.3d at 512 (citing Perry Homes, 258 S.W.3d at 590–

91). No single factor is dispositive. RSL Funding, LLC v. Pippins, 499 S.W.3d 423,

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

Courtright v. Allied Custom Homes, Inc., 647 S.W.3d 504, 516 (Tex. App.—

Houston [1st Dist.] 2022, pet. denied) (citing Perry Homes, 258 S.W.3d at 591).

Rather, “[c]ourts look to the specifics of each case.” Id.; see also Specialty Select

Care Ctr. of San Antonio, L.L.C. v. Owen, 499 S.W.3d 37, 47 (Tex. App.—San

Antonio 2016, no pet.) (“There is no bright-line test for substantial invocation; we

consider the totality of the circumstances in the context of the particular case.”);

10
Pounds v. Rohe, 592 S.W.3d 549, 554 (Tex. App.—Houston [1st Dist.] 2019, no

pet.) (“The specifics of each case matter.”) (citing Henry, 551 S.W.3d at 116).

“Merely taking part in litigation” is insufficient to constitute waiver by

litigation conduct. G.T. Leach Builders, 458 S.W.3d at 512 (quoting In re D. Wilson

Constr. Co., 196 S.W.3d 774, 783 (Tex. 2006) (orig. proceeding)). Delay alone is

also generally insufficient to establish waiver. In re Vesta Ins. Grp., Inc., 192 S.W.3d

759, 763 (Tex. 2006) (orig. proceeding).

Application of Perry Homes Factors

Six of the Perry Homes factors are implicated here.

Factors 1, 2, and 3: Filing, Delay, and Knowledge

With respect to the first two factors, Foley knew about the arbitration

agreement from the outset of litigation, yet it did nothing to obtain a ruling on its

Motion to Compel in the trial court until years later, after this Court reversed the trial

court’s order granting Foley’s TCPA Motion. Even after remand, Foley delayed in

seeking relief. Our mandate issued on December 9, 2024. Foley did not set its Motion

to Compel for hearing until February 7, 2025.

Foley argues that it did not waive its right to arbitration because it filed its

Motion to Compel together with its original answer and further that it filed its TCPA

Motion subject to and in the alternative to its Motion to Compel. But by doing

nothing to set its Motion to Compel for hearing and seeking relief under its TCPA

11
Motion first, Foley made its Motion to Compel subject to a ruling on its TCPA

Motion. The fact that Foley had a deadline in which to file its TCPA Motion did not

prevent it from setting its Motion to Compel for hearing.8 As discussed below, Foley

had ample time to seek a ruling on its Motion to Compel, and later on its TCPA

Motion, or it could have set both motions for hearing at the same time. It did neither.

Foley instead sought relief under its TCPA Motion first, presumably hoping for a

favorable result obviating the need to press its Motion to Compel later.

Factors 4 and 5: Discovery and Disposition on the Merits

The fourth factor contemplates the amount of discovery the movant conducted

before moving to compel arbitration and whether the discovery related to the merits.

While Foley asserts it did not serve any written discovery, a party opposing a TCPA

motion to dismiss must present actual evidence to establish by clear and specific

evidence a prima facie case for each essential element of the claim in question.9

Buzbee v. Clear Channel Outdoor, LLC, 616 S.W.3d 14, 28–29 (Tex. App.—

Houston [14th Dist.] 2020, no pet.). As our sister court has held, the TCPA “is

designed to accelerate the presentation of evidence to support the merits of a suit in

8
See TEX. CIV. PRAC. & REM. CODE § 27.003(b) (providing that TCPA motion must
be filed “not later than the 60th day after the date of service of the legal action”
unless parties extend time by mutual agreement or court extends time “on a showing
of good cause”).
9
See TEX. CIV. PRAC. & REM. CODE § 27.005(c) (noting plaintiff must establish “by
clear and specific evidence a prima facie case for each essential element of the claim
in question” in order to avoid dismissal under TCPA).

12
those circumstances [where] the act applies.” Id. at 22. A non-movant may not rely

on pleadings alone to establish a prima facie case for each essential element of its

claims. Id. at 28 (holding that party defending TCPA motion must present actual

evidence, not merely allegations of its petition, to establish prima facie case for each

element of its claim). The fact that Foley did not serve written discovery thus did not

obviate the need for the Dernicks to marshal their evidence prematurely to defend

against Foley’s TCPA motion. Indeed, in responding to Foley’s TCPA Motion, the

Dernicks proffered nine exhibits spanning more than 200 pages of evidence.

The fifth element considers whether the movant asked the trial court to dispose

of the claim on the merits before moving to compel arbitration. When a movant

previously attempts to dispose of the litigation on the merits, that “ordinarily is a key

factor in assessing a waiver defense.” Buzbee, 2023 WL 7311212, at *4 (citing

Pounds, 592 S.W.3d at 554); see also Richmont Holdings, Inc. v. Superior Recharge

Sys., L.L.C., 455 S.W.3d 573, 575 (Tex. 2014) (noting “key factors” in determining

whether right to arbitration was waived include “the reason for delay in moving to

enforce arbitration, the amount of discovery conducted by the movant, and whether

the movant sought disposition on the merits”) (citing Perry Homes, 258 S.W.3d at

590–93).

Foley argues that by filing its TCPA Motion, it merely preserved its statutory

TCPA defense. But Foley did more than just preserve “a statutory TCPA defense.”

13
It secured a ruling on its TCPA Motion before ever seeking to enforce its right to

arbitration, which had the trial court enforced, would have ended the litigation and

secured an arbitration forum for resolution of the claims: the forum Foley now

requests. In seeking relief under the TCPA first, however, Foley did not seek an

arbitration forum; it sought to conclude the litigation altogether with prejudice, and

it prevailed in that regard.

Foley argues that its TCPA Motion was not a ruling on the merits, but merely

“defensive in nature” comparing the motion to a special appearance or plea to the

jurisdiction.10 The majority argues similarly that a TCPA judgment is not a trial on

the merits or a motion for summary judgment. That is true but of no moment here.

While a TCPA motion to dismiss is not the equivalent of a trial, the TCPA is

a “procedural vehicle to address the merits of a claim.” Clear Channel Outdoor,

LLC, 616 S.W.3d at 22. Unlike a dismissal for lack of jurisdiction, “dismissal under

the TCPA is a judgment on the merits [that] carries res judicata implications.” Id.;

10
Foley cites In re Vesta Insurance Grp., Inc., 192 S.W.3d 759 (Tex. 2006) in support
of its argument that a dismissal motion does not necessarily result in waiver. In re
Vesta is inapposite. It stands for the unremarkable position that seeking dismissal
based on jurisdictional grounds—a ruling that does not impact the merits of the
underlying claims—does not result in waiver. Id. at 764. The TCPA Motion Foley
filed and the relief it secured—by contrast—was a ruling that resulted in dismissal
of the claims with prejudice with res judicata implications. See Montoya Frazier v.
Maxwell, — S.W.3d —, No. 02-23-00103-CV, 2025 WL 494699, at *27 (Tex.
App.—Fort Worth Feb. 13, 2025, pet. denied) (“[A] TCPA dismissal is a merits
judgment and carries res judicata implications.”) (emphasis in original).

14
see also Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 500

S.W.3d 26, 40 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (holding that

dismissal under TCPA “constitutes a final determination on the merits”); Montoya

Frazier v. Maxwell, — S.W.3d —, No. 02-23-00103-CV, 2025 WL 494699, at *27

(Tex. App.—Fort Worth Feb. 13, 2025, pet. denied) (“A TCPA dismissal is a merits

judgment and carries res judicata implications.”) (emphasis in original); Maldonado

v. Franklin, No. 04-18-00819-CV, 2019 WL 4739438, at *2 (Tex. App.—San

Antonio Sept. 30, 2019, no pet.) (mem. op.) (“Dismissal of a legal action under the

TCPA is with prejudice to the refiling of the legal action.”).

Thus, contrary to Foley’s argument, its TCPA Motion was not like a

jurisdictional motion or merely “defensive in nature.” Foley secured the benefit of

complete dismissal of the Dernicks’ claims with prejudice with a resulting award of

more than $100,000 in attorneys’ fees and costs and the end of litigation.

Factor 8: Time and Expense of Litigation

The eighth factor queries how much time and expense the parties committed

to the litigation before the movant sought to compel arbitration. The record reflects

that the Dernicks “incurred more than 50.5 hours of time—equating to $17,675 in

fees—defending against the TCPA [M]otion at the trial level.” The Dernicks also

paid “more than $66,284 in appellate fees to have the dismissal on the merits

reversed.”

15
The Dernicks filed suit in November 2021, and the trial court granted the

TCPA Motion in March 2022. Our mandate reversing the trial court’s judgment

issued in December 2024. Foley set its Motion to Compel for hearing in February

2025.

Seeking Arbitration After Adverse Ruling

In considering whether a party has waived its arbitration rights, we also have

held that “[w]aiting to seek arbitration until after receiving an adverse ruling on the

merits in litigation is perhaps the clearest type of conduct that is inconsistent with

the right to arbitrate.” Pounds, 592 S.W.3d at 556; Prof’l Advantage Software Sols.,

Inc. v. W. Gulf Mar. Ass’n Inc., No. 01-15-01006-CV, 2016 WL 2586690, at *4

(Tex. App.—Houston [1st Dist.] May 5, 2016, no pet.) (mem. op.) (“Rather than

seeking to avoid litigation, [the arbitration movant] chose to litigate the merits of the

case in the trial court on multiple occasions. Unsuccessfully attempting to obtain a

favorable result in court before requesting a referral to arbitration is the type of

litigation behavior that supports the trial court’s waiver finding.”).

Relevant here, we held in Buzbee v. Terry & Thweatt that a defendant who

moved to compel arbitration after unsuccessfully seeking dismissal of the plaintiff’s

claims under the TCPA had substantially invoked the litigation process resulting in

waiver of its arbitration rights. 2023 WL 7311212, at *4–5. Like the appeal here,

Buzbee involved an interlocutory appeal arising from the trial court’s denial of a

16
motion to compel arbitration. 2023 WL 7311212, at *1. The plaintiff law firm, Terry

& Thweatt (“Terry”), sued another law firm and its named partner (collectively,

“Buzbee”) for tortious interference with a contract. Id. at *2. Like Foley did here,

Buzbee filed a TCPA motion to dismiss the claim. Id. The trial court denied the

TCPA motion and Buzbee appealed. Id. This Court affirmed the trial court’s denial

of the TCPA motion, and the Texas Supreme Court denied Buzbee’s petition for

review. Id. After exhausting its appeals and more than two and a half years after suit

was filed, Buzbee filed a motion to compel arbitration, “asserting for the first time

that [Terry] was required to arbitrate its dispute with Buzbee.” Id. The trial court

denied the motion to compel arbitration and Buzbee appealed. Id.

On appeal, we held that Buzbee had substantially invoked the judicial process

and thus waived its right to arbitration by engaging in conduct that “evince[d] the

‘inherent unfairness’ sufficient to establish prejudice.” Id. at *5. In considering

whether Buzbee had waived the right to arbitrate, we considered “whether Buzbee’s

litigation conduct demonstrate[d] an ‘aggressive litigation strategy’ that would

substantially invoke the litigation process.” Id. at *4 (citing Okorafor v. Uncle Sam

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

denied)). Applying the Perry Homes factors, we concluded that Buzbee had

attempted to “have it both ways.” Id. Buzbee first sought a determination on the

merits of Terry’s claims by filing a TCPA motion and seeking dismissal of Terry’s

17
claims on the merits. Id. Only after getting an adverse ruling in the trial court and

exhausting its appellate rights did Buzbee pursue arbitration in the trial court, more

than two years after Terry first filed suit. Id. at *5. Holding Buzbee’s TCPA motion

and related activity constituted substantial invocation of the judicial process, we held

that “failing to seek arbitration until after proceeding in litigation to an adverse result

is the clearest form of inconsistent litigation conduct and is inevitably found to

constitute substantial invocation of the litigation process resulting in waiver.” Id.

(quoting Haddock v. Quinn, 287 S.W.3d 158, 180 (Tex. App.—Fort Worth 2009,

pet. denied) (orig. proceeding)).

We next considered whether Terry had been prejudiced by Buzbee’s acts,

explaining that prejudice may be demonstrated “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. (citing Perry Homes,

258 S.W.3d at 597). We noted that during the two years before Buzbee sought

arbitration, Terry had been forced “to respond to Buzbee’s TCPA motion and was

therefore obligated to present evidence to defeat Buzbee’s TCPA motion, providing

Buzbee with additional information concerning the basis for [Terry’s] claims in the

process.” Id. In other words, Buzbee’s TCPA motion required Terry to “prematurely

marshal its proof.” Id. Concluding Buzbee had substantially invoked the judicial

18
process to Terry’s prejudice, we affirmed the trial court’s order denying the motion

to compel arbitration. Id. at *6.

The majority distinguishes Buzbee by pointing out that unlike the movant in

Buzbee, Foley filed its motion to compel arbitration with its first defensive pleading

and before it filed its TCPA Motion. Buzbee, on the other hand, did not raise or

mention the issue of arbitration and did not move to compel arbitration until after

the Texas Supreme Court denied Buzbee’s petition for review and more than two

years after suit was filed. Foley also argues that unlike the movant in Buzbee, Foley

won its TCPA motion and thus it was the Dernicks who filed an interlocutory appeal

causing further delay before Foley’s Motion to Compel could be heard. In contrast,

Foley argues, the movant’s motion to compel arbitration in Buzbee was only first

asserted after the Texas Supreme Court denied Buzbee’s petition for review.

These are nuanced distinctions and even considering them, they militate in

favor of waiver. The fact that Foley filed its Motion to Compel with its first

responsive pleading, and before filing its TCPA Motion, underscores that Foley

knew from the outset that the claims were subject to arbitration, yet it did nothing to

set its Motion to Compel for hearing either prior to or contemporaneously with the

setting of its TCPA Motion. Filing a motion to compel arbitration and making later-

filed motions subject to that first filing does not, without more, preserve a party’s

right to arbitration, especially when, as here, the movant chooses to seek relief asking

19
the trial court to “enter a take nothing judgment dismissing the Dernicks’ claims with

prejudice and awarding Foley [its] reasonable and necessary attorney’s fees, costs

of court, and such other relief, at law or in equity, to which Foley may be entitled.”

Like Buzbee, Foley first sought dismissal of the Dernicks’ claims with prejudice

under the TCPA, but unlike Buzbee, it prevailed resulting in dismissal of the

Dernicks’ claim with prejudice—a remedy and a result Foley would not have been

able to secure in arbitration.

Foley argues that Buzbee “does not stand for the proposition that the mere

filing of a TCPA motion, in the alternative and expressly subject to an Arbitration

Application, standing alone, substantially invokes the judicial process and waives a

litigant’s arbitration rights.” I don’t disagree. But there was more than the “mere

filing” of a TCPA motion here. Foley sat on its Motion to Compel, choosing not to

set it for hearing or submission until after adjudication of its TCPA Motion. While

Foley argues that its TCPA Motion was filed subject to its Motion to Compel, by

filing and requesting a ruling on its TCPA Motion before ever seeking to enforce its

right to arbitration, Foley relegated its Motion to Compel to its TCPA Motion. That

is, Foley sought to secure relief under its TCPA Motion first, and only should such

an attempt prove unsuccessful, to pursue arbitration. As Foley stated in its TCPA

Motion, if the trial court concluded Foley prevailed on its TCPA Motion, it “need

20
not reach the issue of its right to arbitrate.” Foley thus effectively sought arbitration

subject to its TCPA Motion, not the other way around.

The majority points to four cases for the proposition that we traditionally look

to the filing date of a motion to compel and use that date “as the relevant data point.”

See Met Int’l Trading Co., Inc. v. 49North LLC, No. 01-24-00756-CV, 2025 WL

2413079, at *6 (Tex. App.—Houston [1st Dist.] Aug. 21, 2025, no pet.) (mem. op.);

GRGP, Inc. v. Black Forest Holdings, Inc., No. 01-23-00314-CV, 2023 WL

8459522, at *4 (Tex. App.—Houston [1st Dist.] Dec. 7, 2023, no pet.) (mem. op.);

Northpointe LTC, Ltd. v. Durant, No. 01-22-00215-CV, 2022 WL 17835223, at *9

(Tex. App.—Houston [1st Dist.] Dec. 22, 2022, no pet.) (mem. op.); and Courtright

v. Allied Custom Homes, Inc., 647 S.W.3d 504, 517 (Tex. App.—Houston [1st Dist.]

2022, pet. denied). I disagree.

None of those cases state that we look to the date of filing, and they would be

wrong to do so. As the majority notes, we consider the totality of the circumstances

in each case and there is no bright-line rule when it comes to waiver. The cases are

also distinguishable. There is no indication that in any of the cases, like here, the

movant waited years before seeking to set a previously filed motion to compel for

hearing. On the contrary, in each, after a lengthy delay in filing the motion to compel,

the motion was promptly heard and denied, resulting in the respective appeals. We

therefore had no reason to focus on the date the motion to compel was set for hearing.

21
It is also worth noting that in none of the cited cases did the movant seek and obtain

dismissal with prejudice before moving to compel arbitration.11

Foley also argues that it was faced with the “Hobson’s choice” of having

either to “timely invoke and preserve its statutory TCPA defense” or “risk forfeiting

it altogether if any of the Dernicks’ claims ultimately were held to be non-

arbitrable.” But that is not a predicament Foley faced. Nothing precluded Foley from

pursuing both its right to arbitration and dismissal under the TCPA. A TCPA motion

must be filed “not later than the 60th day after the date of service of the legal action.”

TEX. CIV. PRAC. & REM. CODE § 27.003(b). And the hearing on the motion must be

set no later than “the 60th day after the date of service of the motion . . . .” Id.

§ 27.004.

Foley filed its TCPA Motion on January 25, 2022. It thus had until March

27—sixty days later—to set a hearing on its motion. Foley filed its Motion to

Compel on December 27, 2021. Foley thus had ample time to set its Motion to

Compel for hearing either before or concurrent with the deadline to set its TCPA

11
In GRGP, Inc. v. Black Forest Holdings, Inc., No. 01-23-00314-CV, 2023 WL
8459522, at *5 (Tex. App.—Houston [1st Dist.] Dec. 7, 2023, no pet.) (mem. op.),
GRGP, the arbitration movant filed three summary judgment motions on various
claims asserted against it, but the trial court did not rule on the motions. And in Met
Int’l Trading Co., Inc. v. 49North LLC, No. 01-24-00756-CV, 2025 WL 2413079,
at *8 (Tex. App.—Houston [1st Dist.] Aug. 21, 2025, no pet.) (mem. op.), Met did
not seek a judgment on the merits before moving to compel arbitration, but the
opposing parties won summary judgment dismissing Met’s counterclaims before
Met moved to compel arbitration.

22
Motion for hearing, and to seek dismissal under the TCPA if any “claims ultimately

[were] held to be non-arbitrable.” Foley did not pursue that path. It instead made a

strategic decision to seek relief in the trial court that it could not otherwise secure in

arbitration—early dismissal of the Dernicks’ claims with prejudice and recovery of

attorney’s fees under the TCPA. And indeed, Foley obtained exactly what it sought

when the trial court dismissed the Dernicks’ claims entirely and awarded Foley

attorneys’ fees under the TCPA. Only after this Court reversed the trial court’s

TCPA ruling did Foley for the first time seek to have its Motion to Compel set for

hearing. In other words, like the movant in Buzbee, Foley did not seek to enforce its

right to arbitration until first moving, and in this case securing, and ultimately losing

its request for TCPA relief.

Foley relies on In re H&R Block Fin. Advisors, Inc., 262 S.W.3d 896, 902

(Tex. App.—Houston [14th Dist.] 2008, orig. proceeding) arguing that like Foley

did below, H&R Block “contemporaneously filed a motion to compel arbitration,

and an alternative motion for summary judgment.” In that case, it argues, our sister

court rejected the waiver argument, holding that Texas law “does not stand for the

proposition that a [dispositive] motion, filed in the alternative to an arbitration

demand, is sufficient to result in waiver.” Id. (“Whether a party seeks a judicial

decision on the merits of the case may be one factor in determining waiver, but it is

not the only factor.”) (emphasis in original). I agree with that general statement, but

23
I disagree that H&R Block is applicable. In H&R Block, the movant moved for

enforcement of the arbitration clause within two weeks of filing its answer and it

sought summary judgment only as an alternative to arbitration after the nonmovant

argued he was not a party to the arbitration agreement. Id. at 899. Neither occurred

here.

Foley also relies on a statement in Keytrade USA, Inc. v. Ain Temouchent M/V,

where the Fifth Circuit Court of Appeals, in ruling on a waiver of arbitration defense,

noted that the nonmovant had offered “no legal authority for why a motion for

summary judgment, filed from a defensive posture, can be characterized as an

invocation of judicial process.” 404 F.3d 891, 897 (5th Cir. 2005). As we held in

Pounds, Texas law “is to the contrary.” Pounds, 592 S.W.3d at 556 (citing

Interconex, Inc. v. Ugarov, 224 S.W.3d 523, 534–535 (Tex. App.—Houston [1st

Dist.] 2007, no pet)). We also explained in Pounds that the court in Keytrade did not

reject waiver “merely because of the defensive posture of the summary-judgment

motion.” Id. Rather, the court “emphasized that the defendant had filed its motion

for summary judgment contemporaneously with its motion to compel arbitration,

which removed any doubt as to waiver.”12 Id.; see also RSL Funding, LLC v. Pippins,

12
In Pounds v. Rohe, a widow (Rohe) and her stepson (Pounds) “became embroiled
in litigation” over Rohe’s late husband’s estate. 592 S.W.3d 549, 552 (Tex. App.—
Houston [1st Dist.] 2019, no pet.). The parties ultimately resolved their disputes,
entering into a settlement agreement with an arbitration clause. Id. Rohe
subsequently filed a petition for accounting and distribution in the probate court,
24
499 S.W.3d 423, 433 (Tex. 2016) (characterizing Keytrade as holding that

“regardless of whether a motion for summary judgment invokes the judicial process,

a simultaneous alternative effort to compel arbitration clearly indicates there is no

intent to waive arbitration”).

Had Foley attempted to secure a hearing date for its Motion to Compel or

otherwise made efforts to enforce its Motion to Compel before or simultaneously

with the filing of its TCPA motion, the analysis might be different. Foley, however,

chose instead to move for dismissal of the Dernicks’ claims with prejudice under the

TCPA, and only after losing on that front on appeal, did it seek to enforce its right

to arbitration.

asserting a right to reimbursement from the estate for mortgage payments she made
to prevent foreclosure of property the decedent gave her. Id. Pounds filed a motion
for summary judgment, which the trial court denied. Id. at 552–53. Rohe next
brought a separate suit against the estate seeking reimbursement of the mortgage
payments. Id. at 553. Pounds filed a motion to compel arbitration under the prior
settlement agreement and the estate’s administrator joined in the motion. Id. Rohe
opposed the motion based on waiver. Id. The trial court denied the motion to compel
arbitration, holding Pounds had “waived his right to arbitration by substantially
invoking the judicial process, specifically by filing a motion for summary
judgment[.]” Id. We affirmed, noting that an “attempt to resolve the merits and still
retain the right to arbitration is clearly impermissible.” Id. at 556 (citing Interconex,
Inc. v. Ugarov, 224 S.W.3d 523, 534 (Tex. App.—Houston [1st Dist.] 2007, no
pet.)). We explained that we previously have cited “moving for summary judgment
or seeking a final resolution of the dispute” as examples of “impermissible conduct.”
Id. (citing Interconex, 224 S.W.3d at 534; Williams Indus. v. Earth Dev. Sys. Corp.,
110 S.W.3d 131, 135 (Tex. App.—Houston [1st Dist.] 2003, no pet.)). We
concluded that “the totality of the circumstances” established Pounds had
“substantially invoked the judicial process before trying to compel arbitration.” Id.
at 558.

25
Under the totality of circumstances here, and based on our prior decision in

Buzbee, I would conclude that Foley substantially invoked the judicial process and

waived its right to arbitration by seeking to “have it both ways.” See Buzbee, 2023

WL 7311212 at *4 (explaining party substantially invokes judicial process when

proponent of arbitration “actively tries but fails to achieve a satisfactory result in

litigation before turning to arbitration” such as seeking final resolution of dispute in

trial court); see also Haddock, 287 S.W.3d at 180 (“[W]aiver may be found where a

party has tried and failed to achieve a satisfactory result before turning to

arbitration. . . . Indeed, failing to seek arbitration until after proceeding in litigation

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

inevitably found to constitute substantial invocation of the litigation process

resulting in waiver.”) (internal citations omitted); Accord Bus. Funding, LLC v. Ellis,

625 S.W.3d 612, 618 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (holding

movant waived right to arbitration where it “delayed seeking arbitration until it was

clear that it would receive an adverse result” in litigation); In re Winter Park Constr.,

Inc., 30 S.W.3d 576, 579 (Tex. App.—Texarkana 2000, orig. proceeding) (noting

courts find waiver “if the party seeking arbitration has actively tried and failed to

achieve a satisfactory result in the litigation before turning to arbitration, such as

26
moving for summary judgment or otherwise seeking a final judicial resolution of the

dispute”) (citing cases).13

I do not suggest that filing and pursuing a TCPA motion by itself

automatically results in waiver of the right to arbitration. My conclusion here is

limited to the facts of this case, where Foley knew about the arbitration agreement

from the outset but did nothing to set its Motion to Compel for ruling, opting instead

to request relief under the TCPA first and ultimately securing the dismissal of the

Dernicks’ claims with prejudice. See Pounds, 592 S.W.3d at 554 (“The specifics of

each case matter.”) (citing Henry, 551 S.W.3d at 116).

Prejudice

A party seeking to establish waiver of the right to arbitrate must also establish

prejudice.14 See G.T. Leach Builders, 458 S.W.3d at 511–12. “In the context of

13
In In re Winter Park Constr., Inc., the court held that the defendant had not waived
its right to arbitration because it “did not actively try to achieve a satisfactory result
in the litigation before it sought arbitration.” 30 S.W.3d 576, 579 (Tex. App.—
Texarkana 2000, orig. proceeding).
14
In Morgan v. Sundance, Inc., 596 U.S. 411 (2022), the United States Supreme Court
rejected any requirement of proof of prejudice as an “arbitration-specific” federal
procedural rule. The Dernicks argue that as a result, they do not need to establish
prejudice. Neither the Texas Supreme Court nor this Court has addressed whether
Morgan abrogates the requirement in Texas jurisprudence that a party seeking to
establish waiver of the right to arbitrate must establish prejudice. See Preferred
Pools of Houston, Inc. v. Gossai, No. 14-23-00635-CV, 2024 WL 4457032, at *7
(Tex. App.—Houston [14th Dist.] Oct. 10, 2024, no pet.) (mem. op.) (“Whether
[Morgan’s holding] would govern in state court as a matter of procedure is unsettled
and a matter for the Texas Supreme Court to determine.”); Momentum Project
Controls, LLC v. Booflies to Beefras LLC, No. 14-22-00712-CV, 2023 WL
4196584, at *5 n.5 (Tex. App.—Houston [14th Dist.] June 27, 2023, pet. denied)
27
waiver of the right to arbitrate, prejudice generally focuses on the inherent unfairness

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

arbitration to its own advantage.” Momentum Project Controls, LLC v. Booflies to

Beefras LLC, No. 14-22-00712-CV, 2023 WL 4196584, at *5 (Tex. App.—Houston

[14th Dist.] June 27, 2023, pet. denied) (mem. op.) (citing G.T. Leach Builders, 458

S.W.3d at 515; Perry Homes, 258 S.W.3d at 597). Inherent unfairness may be

demonstrated “in terms of delay, expense, or damage to a party’s legal position that

occurs when the party’s opponent forces it to litigate an issue and later seeks to

arbitrate that same issue.” Perry Homes, 258 S.W.3d at 597 (citation omitted).

A nonmovant “must show the fact of prejudice, but not its extent.” Courtright,

647 S.W.3d at 522 (citing Perry Homes, 258 S.W.3d at 599) (distinguishing “proof

of the fact of prejudice with proof of its extent,” noting nonmovants “had to show

substantial invocation that prejudiced them, not precisely how much it all was.”)

(emphasis in original). We have said with respect to prejudice that “litigating on the

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

(mem. op.) (describing issue as “unsettled” question of law). But see Dallas
Excavation Sys., Inc. v. Orellana, 697 S.W.3d 702, 709 (Tex. App.—Dallas 2024,
no pet.) (holding, pursuant to Morgan, “a showing of prejudice is no longer required
in order to establish waiver, at least in cases involving the FAA”). We need not
decide the issue, because even assuming a showing of prejudice is required, I would
conclude the Dernicks established prejudice.

28
unsatisfactory” is a type of “unfair forum-shopping that, if condoned, would allow

[the movant] to have it both ways[.]” Pounds, 592 S.W.3d at 558.

The Dernicks argue they established prejudice because they incurred fees and

expenses resulting from Foley’s actions. They argue they incurred $17,675 in fees

defending against the TCPA Motion in the trial court and $66,284 in appealing the

trial court’s order granting Foley’s TCPA Motion, for a total of $83,959 in fees.

They argue “[t]he trial court could have reasonably relied on this uncontroverted

evidence to find prejudice.” However, “attorneys’ fees and costs incurred in the

litigation are only one factor in determining whether a party has been prejudiced by

a delay in asserting contractual arbitration rights.” Sipriano v. Reg’l Fin. Corp. of

Tex., No. 05-15-00397-CV, 2016 WL 2905553, at *5 (Tex. App.—Dallas May 16,

2016, no pet.) (mem. op.).15

Prejudice may also be established when a non-movant is required to

“prematurely marshal its proof” in response to a dispositive motion. See Buzbee,

2023 WL 7311212, at *5; Adams v. StaxxRing, Inc., 344 S.W.3d 641, 652 (Tex.

15
Contrary to Foley’s argument, I do not interpret Sipriano to say that the non-
movant’s incurrence of attorneys’ fees and expenses can never in and of itself
establish prejudice. See Sipriano v. Reg’l Fin. Corp. of Tex., No. 05-15-00397-CV,
2016 WL 2905553, at *5 (Tex. App.—Dallas May 16, 2016, no pet.) (mem. op.).
See generally Associated Glass, Ltd. v. Eye Ten Oaks Invs., Ltd., 147 S.W.3d 507,
514 (Tex. App.—San Antonio 2004, orig. proceeding) (rejecting nonmovant’s only
prejudice argument—that it was prejudiced by “increased and ‘destructive’
discovery expenses” before arbitration motion was raised—because nonmovant
failed to submit evidence to trial court to support argument).

29
App.—Dallas 2011, pet. denied) (holding that requiring nonmovants to “marshal

their evidence, thought process, and legal analysis” was “evidence of compromise”

of nonmovants’ legal position and relevant to showing prejudice); Prof’l Advantage

Software Sols., 2016 WL 2586690, at *5 (noting that if arbitration were allowed after

nonmovant responded to three summary judgment motions, movant “would have the

benefit of having forced a ‘preview’ of [nonmovant’s] case on the merits”). In their

TCPA Motion, Foley argued it was entitled to dismissal of the Dernicks’ claims

“because all of [their] claims implicate[d] the exercise of Foley’s right to petition,

and [the Dernicks] could not establish, by clear and specific evidence, a prima facie

case for each essential element of those claims.” Foley also argued it was entitled to

“judgment based upon multiple affirmative defenses and other grounds.” The

Dernicks respond they were “obligated to present evidence to defeat [Foley’s] TCPA

motion, [thus] providing [Foley] with additional information concerning the basis

for [the Dernicks’] claims in the process.” (citing Buzbee, 2023 WL 7311212 at *12–

13). They also argue that Foley “not only sought dismissal on the merits but obtained

full adjudication on the merits.”16

16
The fact that Foley obtained an adjudication under the TCPA and did not merely
file the TCPA motion, is significant. See Spark Connected, LLC v. Semtech Corp.,
No. 4:18-CV-748-KPJ, 2020 WL 6591458, at *7–8 (E.D. Tex. Nov. 10, 2020)
(observing that filing TCPA motion to dismiss was not “inconsistent with
[movant’s] right to arbitrate”). In Spark, the movants withdrew their TCPA motion
before it was ruled on. Id.

30
A party defending a TCPA motion must present actual evidence, not merely

the allegations of its petition, to establish a prima facie case for each element of its

claim. Clear Channel Outdoor, 616 S.W.3d at 28–29. The Dernicks thus had to

present evidence to defend against Foley’s TCPA Motion. Foley argues that any

evidence obtained from the Dernicks in their defense of Foley’s TCPA Motion

would have been discoverable in arbitration. Even if so, Foley’s actions required the

Dernicks to marshal their proof prematurely. Adams, 344 S.W.3d at 652 (holding

that requiring nonmovants to “marshal their evidence, thought process, and legal

analysis” was evidence of compromise to nonmovants’ legal position and relevant

to showing prejudice); see also Prof’l Advantage Software Sols., 2016 WL 2586690,

at *5 (observing that if “arbitration were allowed [after nonmovant responded to

three summary judgment motions], [movant] would have the benefit of having

forced a ‘preview’ of [nonmovant’s] case on the merits”).

In light of the foregoing, I would conclude that incurring attorneys’ fees of

nearly $84,000 defending against Foley’s TCPA Motion in trial court and on appeal,

a delay of more than three years occasioned by the granting and eventual reversal of

Foley’s TCPA Motion, and the fact the Dernicks had to marshal their proof

prematurely to defend against the TCPA Motion sufficiently established prejudice.17

17
Foley relies on In re Vesta to argue the Dernicks were not prejudiced. While the
Supreme Court in In re Vesta was not swayed by the more than $200,000 in
expenses and fees the nonmovant incurred in litigating before the movant sought to
31
See generally Momentum Project Controls, 2023 WL 4196584, at *6 (holding

attorneys’ fees of $20,000 incurred in preparing case prior to other party’s filing of

motion to compel arbitration and almost four-year delay in asserting arbitration

clause, among other things, resulted in prejudice showing); Buzbee, 2023 WL

7311212, at *5 (holding two-year delay in seeking arbitration, during which time

nonmovant was forced to proffer evidence in response to movant’s TCPA motion,

was prejudicial, stating “Buzbee’s conduct in ‘attempt[ing] to have it both ways by

switching between litigation and arbitration to [his] own advantage’ evinces the

‘inherent unfairness’ sufficient to establish prejudice”).

Conclusion

Because the evidence established that Foley substantially invoked the judicial

process inconsistent with the right to compel arbitration and the Dernicks established

prejudice, the trial court properly held that Foley waived its right to arbitrate the

Dernicks’ claims. I would affirm the trial court’s order denying Foley’s Motion to

Compel.

Because the majority does not so hold and its opinion is at odds with our

opinion in Buzbee, I respectfully dissent.

compel arbitration, the court noted that the pre-trial costs were “largely self-
inflicted,” given that the nonmovant “sent far more discovery requests than he
received, and amended his petition at least eleven times.” 192 S.W.3d at 763.

32
Veronica Rivas-Molloy
Justice

33