Embarrassingly, the always excellent Florida Arbitration Law blog has scooped us on a Texas state appellate court decision on arbitrability. Instead of recapping their summary of the Beaumont opinion on whether or not participation in litigation discovery waives a potential right to compel arbitration, we’ll just give you a link and direct you to their commentary.
The Beaumont Court, by the way, in part bases its decision on the Texas Supreme Court’s decision in Vesta, about which we blogged back when it was handed down. In that opinion, the Supreme Court refused to find waiver despite much more involved litigation participation than that found in the Beaumont case.
Interestingly, a dissenting Justice in the Beaumont case distinguishes between sheer volume of work done and the type of work done when conducting the waiver analysis. He notes that having filed a motion to dismiss on the merits and lost, the defendant should not then be able to move to compel arbitration to get another bite at the apple in a different forum, which seems to be an important point not precluded by Vesta.
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