CONDITIONALLY GRANT; and Opinion Filed June 18, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-00320-CV

                        IN RE CGI CONSTRUCTION, INC., Relator

                  Original Proceeding from the 95th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-17-16221-D

                             MEMORANDUM OPINION
                       Before Justices Lang-Miers, Fillmore, and Stoddart
                                   Opinion by Justice Fillmore
       In this original proceeding, we must decide whether a trial court may set aside a default

judgment on the condition that the defaulting party waive its right to seek contractually-agreed

arbitration. We conclude such a condition is improper as a matter of law and conditionally grant

a writ of mandamus to remove the condition from the order setting aside the default judgment.

                                           Background

       The underlying proceeding is a contract dispute between a subcontractor and general

contractor relating to two construction projects. The trial court signed a no-answer default

judgment against relator CGI Construction, Inc. (CGI), CGI timely moved to set aside the default

judgment, and the trial court granted the motion to set aside. However, the trial court placed two

conditions on its order. First, it required CGI to pay real party in interest VV Services LP d/b/a

Pivot Building Services (Pivot) $4,795 in fees and costs incurred to obtain the default judgment.

Second, it required CGI to waive its right to seek arbitration in the proceeding. CGI does not agree
to waive its arbitration rights and seeks a writ directing the trial court to vacate that condition from

the order setting aside the default judgment. CGI has paid the fees and costs ordered and does not

challenge that condition. At our request, Pivot filed a response to the petition.

                                       Mandamus Standard

       To establish a right to mandamus relief, CGI must establish that the trial court clearly

abused its discretion and CGI lacks an adequate remedy on appeal. In re Prudential Ins. Co. of

Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A trial court clearly abuses its

discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and

prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. In re Cerberus

Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). To

determine if a party has an adequate remedy by appeal, the appellate court evaluates whether “any

benefits to mandamus review are outweighed by the detriments.” In re Prudential Ins. Co. of Am.,

148 S.W.3d at 136. Further, an appeal is not an adequate remedy when a party stands to lose a

substantial right. Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding).

                                          Applicable Law

       To have a default judgment set aside, a party must satisfy the three elements of Craddock

v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939). Under Craddock, a defendant must: (1)

demonstrate that its failure to answer before judgment was not intentional, or the result of

conscious indifference, but was due to mistake or accident; (2) set up a meritorious defense in its

motion to set aside; and (3) file the motion at a time when granting it will occasion no delay or

otherwise work an injury to the plaintiff. Id. at 126.

       Trial courts are permitted to grant new trials conditioned upon the payment of attorney’s

fees, expenses for witnesses, travel expenses, and other costs incurred in obtaining the default

judgment. Equitable Gen. Ins. Co. of Tex. v. Yates, 684 S.W.2d 669, 671 (Tex. 1984) (citing

United Beef Producers, Inc. v. Lookingbill, 532 S.W.2d 958, 959 (Tex. 1976)). Such conditional

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grants of new trial in default judgment cases are governed by the equitable consideration of not

causing any injury to the party obtaining the original judgment. Yates, 684 S.W.2d at 671 (citing

Craddock).

       Arbitration of disputes is strongly favored under both federal and Texas law. Henry v.

Cash Biz, LP, No. 16-0854, 2018 WL 1022838, at *3 (Tex. Feb. 23, 2018); Prudential Sec. Inc. v.

Marshall, 909 S.W.2d 896, 898 (Tex. 1995) (per curiam); Cambridge Legacy Grp., Inc. v. Jain,

407 S.W.3d 443, 447 (Tex. App.—Dallas 2013, pet. denied). “Because public policy favors

resolving disputes through arbitration, the law imposes a strong presumption against the waiver of

contractual arbitration rights.” Pilot Travel Centers, LLC v. McCray, 416 S.W.3d 168, 182 (Tex.

App.—Dallas 2013, no pet.).

                                             Discussion

       CGI argues this Court should grant mandamus relief because the trial court committed a

clear abuse of discretion in requiring CGI to waive its contractual right to arbitration as a condition

to setting aside a default judgment. Pivot has cited no authority, and we have found none,

permitting a court to condition the setting aside of a default judgment on waiver of contractual

arbitration rights. In light of the reluctance of courts to impair the sanctity of contracts or vested

rights, Royston, Rayzor, Vickery, & Williams, LLP v. Lopez, 467 S.W.3d 494, 503–04 (Tex. 2015),

and the public policy favoring arbitration, Henry, 2018 WL 1022838, at *3, we conclude the trial

court may not condition the granting of a new trial and motion to set aside default judgment on

waiver of contractual arbitration rights. The trial court, therefore, abused its discretion by

conditioning its order on CGI’s waiver of its contractual arbitration rights. CGI lacks an adequate

remedy on appeal because arbitration is a substantial right that will be lost if the order remains in

place until after trial. See In re M.W.M., Jr., 523 S.W.3d 203, 206 (Tex. App.—Dallas 2017, orig.

proceeding) (appeal is an inadequate remedy when a trial court denies a party its contracted-for



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arbitration rights); see also Austin Commercial Contractors, L.P. v. Carter & Burgess, Inc., 347

S.W.3d 897, 901 (Tex. App.—Dallas 2011, pet. denied) (same).

       Pivot argues that the condition was proper because the trial court determined that CGI had

not met the third Craddock element, i.e., that a new trial would cause neither delay nor undue

prejudice. Pivot contends that allowing CGI to move to compel arbitration will cause delay, added

costs, and injury to Pivot, and those costs will multiply if Pivot must participate in arbitration. The

trial judge echoed Pivot’s concerns and expressed his own concern regarding the costs of

arbitration. The trial judge opined that “the additional delay and cost imposed at this point would

just be astronomical. I mean, the Court’s own experience in AAA arbitration is – well, it gets plum

horrifying sometimes.” Pivot maintains that those statements constitute a finding that CGI did not

meet the third Craddock element. We disagree. The trial judge made no explicit findings on any

of the Craddock elements. Further, the trial judge set aside the default judgment. Had the trial

judge decided CGI had not met the third Craddock element, he would have denied the motion to

set aside the default judgment.

       However, to the extent the trial judge’s statement could be construed as a finding that CGI

did not meet the third Craddock element, the record shows the finding was an abuse of discretion.

The purpose of the third element of the Craddock test is to protect a plaintiff against undue delay

or injury that would result in a disadvantage when presenting the merits of its case at a new trial,

such as the loss of a witness or other critical evidence. Culinaire of Fla., Inc. v. FelCor/CSS

Holdings, LP, No. 05-14-00832-CV, 2015 WL 3769580, at *4 (Tex. App.—Dallas June 17, 2015,

pet. denied) (mem. op.). “Once a defendant has alleged that granting a new trial will not injure the

plaintiff, the burden of going forward with proof of injury shifts to the plaintiff.” Id. Here, CGI

asserted that granting a new trial would not delay or otherwise injure Pivot because CGI offered

to go to arbitration immediately and to reimburse Pivot’s reasonable expenses incurred in obtaining

the default judgment. The burden was thereby shifted to Pivot to disprove this assertion. See id.

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In its response to the motion to set aside default judgment, Pivot complained that it has unpaid

invoices and further delays will increase those costs. Pivot also argued “on information and belief”

that CGI “may be close to filing for bankruptcy” and delay in the underlying proceeding may

impact recoverability of unpaid invoices in a bankruptcy.            Finally, Pivot complained that

arbitration is expensive:

          Moreover, arbitration proceedings are far more costly in costs, filing fees, and
          paying for an arbitrator’s time than are the costs already incurred in filing fees,
          service fees, and costs already incurred by Plaintiff in this Court. This is just MORE
          damage and injury that will be incurred by Plaintiff through granting of Defendant’s
          motion, that Defendant ignores in its motion.

Pivot did not allege a specific injury, such as the loss of witnesses or valuable evidence, and

presented no evidence of an alleged injury. Accordingly, Pivot did not prove harm or injury

sufficient to preclude the granting of a new trial. See, e.g., id. (being required to incur legal costs

is not sufficient to show undue delay and injury such that a default judgment should not be set

aside).

          For these reasons, we conclude the trial court abused its discretion by conditioning the

order on CGI waiving its contractual arbitration rights and that CGI has no adequate remedy on

appeal. Accordingly, we conditionally grant the writ of mandamus. We direct the trial court to,

within twenty-one (21) days of the date of this opinion, issue a written order reforming the order

setting aside the default judgment by removing the condition requiring waiver of arbitration rights.

We are confident the trial court will comply, but a writ will issue if the trial court fails to comply.




                                                      /Robert M. Fillmore/
                                                      ROBERT M. FILLMORE
                                                      JUSTICE


180320F.P05



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