Texas: Party waived right to arbitration by substantially invoking the judicial process

Originally published by Gene Roberts.

In Hogg v. Lynch, Chappell & Alsup, P.C., the El Paso Court of Appeals held that a law firm’s client waived her right to seek arbitration by substantially invoking the judicial process to the law firm’s detriment.
Ms. Hogg and the law firm entered into a contingent fee agreement. Ms. Hogg and her attorneys attended a mediation relating to the estate of Ms. Hogg’s late husband. The MSA stated that warranty deeds would be executed and an estate closing would take place. Ms. Hogg asked the law firm to take a lower contingency fee percentage, the firm declined, and Ms. Hogg terminated the law firm’s services. Ultimately, the law firm and Ms. Hogg engaged in scheduling orders and discovery.
The El Paso Court of Appeals outlined relevant factors when making the determination if a party has impliedly waived its rights to arbitration, including:

• whether the party who pursued arbitration was the plaintiff or the defendant;

• how long the party who pursued arbitration delayed before …

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