More specifically, the Texas Supreme Court explained: [P]rejudice to a party may arise in any number of ways that demonstrate harm to a party’s legal rights or financial position. Perry Homes v. Cull, 258 S.W.3d 580, 597 (Tex. 2008) (defining prejudice for purposes of waiver of arbitration as “the inherent unfairness in terms of delay, expense, or damage to a party’s legal position;” see also In re Tyco Int'l Ltd. Sec.

Again using Texas as an example, the Texas Arbitration Act is based on the Uniform Arbitration Act, as are the arbitration statutes of most other states, and the Texas Supreme Court has stressed “the importance of keeping federal and state arbitration law consistent.” Perry Homes v. Cull, 258 S.W.3d 580, 594 (Tex. 2008). Texas appeals courts have flatly said, “The standard for determining waiver of the right to arbitration is the same under both the Texas General Arbitration Act and the Federal Arbitration Act.”

The elements of waiver include the following: (1) existing right, benefit, or advantage; (2) actual or constructive knowledge of its existence; and (3) an actual intent to relinquish the right inferable from the conduct. Perry Homes v. Cull, 258 S.W.3d 580, 602–03 (Tex. 2008); Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996); Bass & Co. v. Dalsan Props.—Abilene, 885 S.W.2d 572, 577 (Tex. App.—Dallas 1991, no writ). A party can impliedly waive the other party’s breach where he fails to object to a deviation by the other party from the strict terms of the contract. Childress v. Cook, 245 F.2d 798 (5th Cir. 1957).

No one factor was dispositive, and even in close cases, the presumption against waiver governs. RSL Funding, LLC v. Pippins, 499 S.W.3d 423, 430–31 (Tex. 2016); Perry Homes v. Cull, 258 S.W.3d 580, 590 (Tex. 2008), cert. denied, 555 U.S. 1103, 129 S.Ct. 952, 173 L.Ed.2d 116 (2009).

The Supreme Court found that this conduct "do not approach a substantial invocation of the judicial process." The Court reiterated that the burden to show waiver of an arbitration clause is a high one and held that the court of appeals misapplied the Court's holding in Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008). Click here for the opinion.

The Supreme Court found that this conduct "do not approach a substantial invocation of the judicial process." The Court reiterated that the burden to show waiver of an arbitration clause is a high one and held that the court of appeals misapplied the Court's holding in Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008). Click here for the opinion.

The Court agreed with Kennedy Hodges that the Brown Suit did not affect the firm’s right to arbitrate with the Gobellans because the Brown Suit contained tort and contract claims that did not involve the Gobellans as parties. Additionally, the lower courts’ decisions conflict with the case of Perry Homes v. Cull, 258 S.W.3d 580, 589 (Tex. 2008).In Cull, the Court held that a party might waive the right to arbitrate “by substantially invoking the judicial process to the other party’s detriment or prejudice.”