by Michael Fox
At least according to a Texas Court of Appeal. The key to waiver is harm to plaintiff, and in this case that was not shown even though there had been a motion to transfer venue and discovery by both sides, as well as a period of time before the arbitration agreement was raised. Noting the Texas Supreme Court's strong presumption against waiver, the court granted mandamus under the FAA. In Re Granite Construction Co. (Tx. App. - Beaumont 2/26/04).
There was a dissent, but it was over the procedural issue of whether the arbitration should be compelled under the FAA via mandamus, or under the TAA pursuant to appeal. Justice Burgess, continues his argument for a more restrictive view of the FAA that he began unsuccessfully in In Re Nasr, 50 S.W.3d 23 (Tex. App. - Beaumont 2001).