                               Fourth Court of Appeals
                                     San Antonio, Texas

                                             OPINION
                                         No. 04-13-00273-CV

               IBS ASSET LIQUIDATIONS LLC f/k/a Icon Building Systems, LLC,
                                     Appellant

                                            v.
                                 Multiples Del Norte SA de
                       SERVICIOS MULTIPLES DEL NORTE SA DE CV,
                                         Appellee

                     From the 150th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2012-CI-06095
                             Honorable Richard Price, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice
Dissenting opinion by: Patricia O. Alvarez, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: November 20, 2013

REVERSED AND REMANDED

           In this interlocutory appeal, IBS Asset Liquidations LLC, formerly known as Icon Building

Systems, LLC, (“Icon”), appeals the trial court’s denial of its motion to compel arbitration

asserting Servicios Multiples Del Norte SA de CV (“Servicios”) failed to offer any evidence in

support of its defense of waiver. We reverse and remand.
                                                                                        04-13-00273-CV


                                         BACKGROUND

       Servicios and Icon entered into a contract under which Icon agreed to design and

manufacture airplane hangars for installation in Mexico. The contract contained an arbitration

clause which provided:

       [A]t [Icon’s] sole and exclusive option, all claims, disputes or controversies arising
       out of, or in relation to the interpretation, application, or enforcement of this
       Contract shall be decided by arbitration utilizing a single arbitrator . . . The parties
       acknowledge and agree that this Agreement includes activities in Interstate
       Commerce and that the Federal Arbitration Act . . . shall control and apply to any
       arbitration conducted hereunder.

       On November 1, 2010, Servicios filed suit in McLennan County against Icon asserting

breach of contract, DTPA claims, conversion, negligence, gross negligence, and fraud claims. Icon

filed an answer, participated in discovery, and, in April of 2012, the parties filed a joint motion to

transfer to Bexar County. The case was set for a jury trial in Bexar County on August 19, 2013.

On March 22, 2013, nearly two and one-half years after the suit was initiated and approximately

five months before trial was set to commence, Icon filed a motion to compel arbitration pursuant

to the contract between the parties. Servicios filed a response, asserting waiver of arbitration. On

April 9, 2013, the trial court denied Icon’s motion to compel arbitration and this interlocutory

appeal followed.

                                 WAIVER OF ARBITRATION

       “There is a strong presumption against waiver of arbitration, but it is not irrebuttable . . . .”

Perry Homes v. Cull, 258 S.W.3d 580, 584 (Tex. 2008). Waiver of arbitration is a question of law.

In re Medallion, Ltd., 70 S.W.3d 284, 288 (Tex. App.—San Antonio 2002, orig. proceeding). We

review whether a party has waived its right to arbitration de novo, giving no deference to the trial

court’s ruling. Perry Homes v. Cull, 258 S.W.3d 580, 598 (Tex. 2008). A party waives arbitration

by substantially invoking the judicial process to the other party’s detriment. Perry Homes, 258


                                                 -2-
                                                                                      04-13-00273-CV


S.W.3d at 589-90; J.B. Hunt Transport, Inc. v. Hartman, 307 S.W.3d 804, 810 (Tex. App.—San

Antonio 2010, orig. proceeding). “Due to the strong presumption against waiver of arbitration,

this hurdle is a high one.” Perry Homes, 258 S.W.3d at 590. The test for determining waiver

requires us to ask (1) whether the party seeking arbitration substantially invoked the judicial

process; and (2) whether the opposing party proved it suffered prejudice as a result. Medallion,

79 S.W.3d at 288. This test requires us to look at the totality of the circumstances. Perry Homes,

258 S.W.3d at 591.

       We agree with the dissent’s analysis and conclusion that Icon’s participation amounted to

Icon “substantially invoking the judicial process.” However, we must conclude Servicios did not

carry its burden to prove the second requirement, i.e., that it would suffer prejudice if compelled

to arbitration. In its response to Icon’s motion to compel arbitration, Servicios asserted:

       By substantially invoking the judicial process, [Icon] has prejudiced [Servicios].
       [Servicios] invested a significant amount of time and expense into litigating this
       case over the past 2 ½ years. [Servicios] has incurred significant attorney’s fees
       and costs associated with litigation preparation.

However, showing prejudice is generally an evidentiary burden. Williams Indus., Inc. v. Earth

Dev. Sys. Corp., 110 S.W.3d 131, 135 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Here, no

evidentiary hearing was held on the motion to compel and Servicios did not attach any evidence

to its response to support its general allegations. Generalized complaints about delay and expense,

without evidentiary support, are insufficient to establish prejudice. Pennzoil Co. v. Arnold Oil Co.,

Inc., 30 S.W.3d 494, 499 (Tex. App.—San Antonio 2000, orig. proceeding); see also Williams

Indus., 110 S.W.3d at 135 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“to show prejudice . . .

EDS would have had to show how the delay, its fees and costs, the volume of discovery, or the

information that Williams obtained in discovery had prejudiced EDS. EDS did not do so.”); Lyda

Swinerton Builders, Inc. v. Pools by Blue Haven, Inc., No. 04-10-00631-CV, 2011 WL 721469,


                                                -3-
                                                                                       04-13-00273-CV


*6 (Tex. App.—San Antonio March 2, 2011, no pet.) (concluding no waiver of right to arbitrate

and stating, “[a]bsent from the record . . . is any evidence detailing the time and resources allegedly

expended by Blue Haven in connection with this matter”).

       In Perry Homes, the Supreme Court considered several factors, including when the movant

knew about the arbitration clause, how much discovery has been conducted, who initiated the

discovery, whether the discovery related to the merits rather than arbitrability, how much of the

discovery would be useful in arbitration, and whether the movant sought judgment on the merits.

258 S.W.2d at 592. Here, the arbitration clause is contained in the parties’ contract; therefore;

Icon either knew or should have known about the clause before it was sued on November 1, 2010.

Icon did not move for arbitration until March 22, 2013. But, “[w]e do not consider the length of

any delay separate from the totality of the circumstances.” In re ADM Investor Serv., Inc., 304

S.W.3d 371, 374 (Tex. 2010) (citing to Perry Homes, 258 S.W.3d at 595-97).

       As the dissent notes, the arbitration clause provides that “[e]xcept for the exchange of

relevant, material and non-privileged documents between the Parties and a reasonable number of

depositions, there shall be no interrogatories or other discovery in any arbitration hereunder.” We

disagree with the dissent’s conclusion that Icon obtained the benefits of discovery. Our review is

limited to the record before the trial court. Perry Homes, 258 S.W.3d at 596, n.89. Because there

was no evidentiary hearing, because Servicios did not attach evidence to its response to the motion

to compel arbitration, and because Servicios did not ask the trial court to take judicial notice of its

files, the only record before the court was Servicios’s response. Its response listed a number of

pleadings allegedly filed by both parties. However, a close examination of this list reveals all of

Icon’s “discovery” consisted only of its designation of fact and expert witnesses and Icon’s

responses to discovery requested by Servicios. “[A] party who requests lots of discovery is not

prejudiced by getting it and taking it to arbitration in the same way that a party who produces lots
                                                 -4-
                                                                                      04-13-00273-CV


of discovery outside the stricter discovery limits in arbitration.” Id. at 600. The record before the

trial court does not show whether any of the requested discovery went to the merits rather than to

arbitrability, how much of the discovery would be useful in arbitration, or, as allowed by the

arbitration clause, whether any of the discovery involved “relevant, material and non-privileged

documents.” Finally, Icon did not seek judgment on the merits, and all requests for trial settings

were filed by Servicios.

                                         CONCLUSION

       After examining the totality of the circumstances on this sparse record, we conclude

Servicios did not satisfy the “high hurdle” of demonstrating “the fact of prejudice.” Perry Homes,

258 S.W.3d at 584, 599. Therefore, the trial court erred in denying Icon’s motion to compel

arbitration. We reverse the trial court’s order and remand the case to the trial court for further

proceedings.



                                                  Sandee Bryan Marion, Justice




                                                -5-
