DRAFT 2 Brief on the merits - Supreme Court of Texas

Heritage’s four-year delay in initiating arbitration was patently unreasonable and
flagrantly inconsistent with any intention to rely upon arbitration. Accordingly, Heritage
waived its right to enforce arbitration.
5. The Purpose of Arbitration is Frustrated By a Four-Year Delay
in Initiating Arbitration After Arbitration Was Compelled
There are a rare few instances where a party is allowed four years to take action.
Once a lawsuit is initiated, the Texas Rules of Civil Procedure impose deadlines based
upon days or months, not years. See e.g., TEX. R. CIV. P. 21a, 99(b), 190, 194.3, 196.2,
197.2, 198.2, and 329b; See also, TEX. R. APP. P. 33.2(e), 35.1, 37, 38.6 and 55.7. An
order staying a lawsuit and compelling arbitration is not a license to indefinitely postpone
the proceedings. Rather, the purpose of arbitration is to “expedite and facilitate the
settlement of disputes and avoid the delay caused by litigation.” Radiator Specialty Co. v.
Cannon Mills, Inc., 97 F.2d 318, 319 (4th Cir. 1938), see also Perry Homes, 258 S.W.3d
at p. 599, n.108 (quoting Preston v. Ferrer, 552 U.S. 346, 128 S. Ct. 978, 169 L. Ed. 2d
917 (2008) ("A prime objective of an agreement to arbitrate is to achieve streamlined
proceedings and expeditious results.")). Arbitration should not be used to create
additional delays. Cannan Mills, 97 F.2d at 319. Thus, “the party seeking to enforce
arbitration can do so only when not guilty of dilatoriness or delay.” Id.
Had Heritage promptly filed a demand for arbitration, the arbitration proceedings
would have likely been completed years ago. Half of all cases filed with the American
Arbitration Association (“AAA”) valued from $500,000 to $999,999 1 conclude with an
1 The Demand for Arbitration that was eventually filed by Heritage values the case at $900,000. (R. Tab 3, p. 245.)
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