DRAFT 2 Brief on the merits - Supreme Court of Texas

arbitration for 8 years after the cause of action accrued and for four years after the court
ordered the case to arbitration.
Moreover, during the alleged delay in Prudential, multiple motions were filed,
discovery was conducted and another party intervened. Id. There was no multi-year
period of inaction to justify a default based upon a party’s dilatory conduct, as there is
here. Prudential is not analogous to the present lawsuit.
Likewise, the cases that Heritage claims follow Prudential are inapplicable to the
present matter. The cases on which Heritage relies discuss waiver by a party’s action
(invocation of the judicial process) rather than default because of a party’s inaction.
Additionally, the EZ Pawn case relied upon by Heritage acknowledges Spain, in which a
three-year eight-month lapse between notice of claim and demand for arbitration was
found to be unreasonable, prejudicial per se and a waiver of arbitration. EZ Pawn Corp.
v. Mancias, 934 S.W.2d 87, 90 (Tex. 1996), citing Spain v. Houston Oilers, Inc., 593
S.W.2d 746, 747 (Tex. Civ. App.—Houston [14 th Dist] 1979, no writ).
The cases cited by Heritage do not support its right to arbitrate. Heritage’s inaction
resulted in default. The only equitable remedy is to vacate the stay.
2. This Question Cannot Be Decided By The Arbitrator When
Arbitration was Never Initiated
Heritage next asserts that the question of whether it waived its arbitration rights is
for the arbitrator to decide, rather than the court. Yet courts have repeatedly held that the
trial court has the authority to vacate a stay or dismiss a lawsuit when the party seeking
relief fails to proceed with arbitration. Miller v. AAACON Auto Transport, Inc., 545 F.2d
6