Preview
Electronically Filed
10/6/2023 12:46 PM
Hidalgo County District Clerks
Reviewed By: Alfonso Esparza
CAUSE NO. C-1052-22-A
REMEDY ROOFING, INC. § IN THE DISTRICT COURT
Plaintiff, §
§
v. § 92ND JUDICIAL DISTRICT
§
JAVIER PEREZ §
Defendant. § HIDALGO COUNTY, TEXAS
REMEDY ROOFING, INC.’S BENCH BRIEF IN SUPPORT OF
MOTION TO COMPEL ARBITRATION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Plaintiff Remedy Roofing, Inc. (“Remedy”), and files this Bench Brief in
Support of its Motion to Compel Arbitration and would respectfully show the Court as follows:
Summary of Brief
Perez has not demonstrated any prejudice that would warrant denying Remedy’s
arbitration request. Texas courts have repeatedly provided that public policy favors
arbitration and that “in close cases, the strong presumption against waiver should
govern.” Remedy therefore asks this Court to grant its Motion to Compel
Arbitration.
Argument and Authorities
There is no dispute that Remedy met its initial burden to compel arbitration: a valid
arbitration agreement exists and the claims in issue fall within the scope of the agreement. Thus,
the burden shifts to Perez to establish that Remedy waived its right to arbitrate. However, Perez
has wholly failed to meet this burden.
A party asserting waiver as a defense to arbitration must satisfy both prongs of the two-
part test—the party seeking arbitration substantially invoked the judicial process and the opposing
party suffered prejudice as a result. G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d
502, 511–12 (Tex. 2015). Because public policy favors arbitration, there is a strong presumption
against waiver, and a party opposing arbitration on waiver grounds faces a “high hurdle.” Kennedy
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Hidalgo County District Clerks
Reviewed By: Alfonso Esparza
Hodges, L.L.P. v. Gobellan, 433 S.W.3d 542, 543 (Tex. 2014); see also Prudential Sec. Inc. v.
Marshall, 909 S.W.2d 896, 898 (Tex. 1995) (“a presumption exists against the waiver of a
contractual right to arbitration”). It is well established that any doubts concerning the scope of
arbitrable issues should be resolved in favor of arbitration and in close cases, the “strong
presumption against waiver” should govern. In re Serv. Corp. Int'l, 85 S.W.3d 171, 174 (Tex.
2002); Baty v. Bowen, Miclette & Britt, Inc., 423 S.W.3d 427, 434 (Tex. App.—Houston [14th
Dist.] 2013, pet. denied). Perez argues that Remedy substantially invoked the judicial process.
Both parties address this in their respective filings. But since Perez must also meet the prejudice
prong, Remedy’s brief will focus on how Perez fails to satisfy it.
First, recent Texas court decisions do not support Perez’s contention that Morgan v.
Sundance eliminated the prejudice prong of the waiver analysis. See Pearland Urban Air, LLC v.
Rockwood Alls., Inc., No. 14-22-00499-CV, 2023 WL 4359992, at *2 (Tex. App.—Houston [14th
Dist.] July 6, 2023, no pet.) (“[b]ecause public policy favors arbitration, there is a strong
presumption against waiver”); see also Momentum Project Controls, LLC v. Booflies to Beefras
LLC, No. 14-22-00712-CV, 2023 WL 4196584, at *3 (Tex. App.—Houston [14th Dist.] June 27,
2023, pet. filed) ([b]ecause arbitration is favored, the ‘hurdle’ to demonstrate waiver by litigation
conduct is a high one). Perez's assertion that the Supreme Court diminished the burden to establish
waiver is without merit.
Perez has presented little to no argument supporting the contention that he will be
prejudiced if this Court grants Remedy’s Motion to Compel Arbitration. See In re Bruce Terminix
Co., 988 S.W.2d 702, 704 (Tex. 1998) (“Even substantially invoking the judicial process does not
waive a party's arbitration rights unless the opposing party proves that it suffered prejudice as a
result”); see also Momentum Project Controls, 2023 WL 4196584, at *5 (“[s]ubstantial invocation
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Hidalgo County District Clerks
Reviewed By: Alfonso Esparza
of the judicial process is not enough; there also must be prejudice”). Perez argues that he will be
prejudiced because he has incurred “substantial” attorney’s fees in litigating this case. However,
prior to Remedy filing its Motion to Compel Arbitration, Perez’s involvement in this lawsuit was
very minimal. This is evidenced by Perez’s repeated failure to appear at hearings with an attorney,
failure to respond to discovery, and failure to file any substantive answer to this lawsuit for over a
year.
Nevertheless, courts have not given considerable weight to this factor. Even when
considered, they found $200,000.00 in attorney’s fees over two years was not enough to show
prejudice. See In re Vesta, 192 S.W.3d at 763. In fact, courts have recognized that the very purpose
of arbitration is to avoid the time and expense of a trial and appeal. In re Bruce Terminix Co., 988
S.W.2d at 704; see also Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272–73 (Tex. 1992).
As previously noted, the parties’ arbitration clause provides “the arbitrator’s final award shall be
issued within ninety (90) days after service of the arbitration demand on the other party.” The
parties will almost certainly incur less attorney’s fees and other costs through the arbitration
process than they would in a full trial on the merits. Perez’s argument that he is prejudiced by
expending time and attorney’s fees in court contradicts itself—he is asking the court to keep it out
of arbitration so he can spend even more money in litigation.
Prejudice is typically found where a party uses the judicial processes to gain access to
information that would not have been discoverable in arbitration. In re Bruce Terminix Co., 988
S.W.2d at 704. Moreover, it is well established that “when only a minimal amount of discovery
has been conducted, which may also be useful for the purpose of arbitration, the court should not
ordinarily infer waiver based upon prejudice.” Id. Here, the minimal discovery that has been
exchanged in this lawsuit was by Remedy to Perez’s requests for production and interrogatories,
3
Electronically Filed
10/6/2023 12:46 PM
Hidalgo County District Clerks
Reviewed By: Alfonso Esparza
which will be useful in the parties’ arbitration. On the other hand, Perez failed to respond to
Remedy’s request for disclosure and admissions. The only document Perez produced were
photographs taken by him and his expert. While the arbitration agreement only allows discovery
if the parties agree, Perez is the only party that has benefited from discovery in this litigation.
In Perez's latest filing, he cites Perry Homes v. Cull and Professional Advantage v. West
Gulf Maritime Association to bolster his argument that arbitration would prejudice him. But he
omits any meaningful similarities between these cases and the case at hand—because none exist.
In Perry Homes v. Cull, the plaintiff homeowners vigorously opposed arbitration in their pleadings
and in open court. 258 S.W.3d 580, 584 (Tex. 2008). After conducting extensive discovery about
every aspect of the merits, taking ten depositions, and deposing the defendants’ experts, the
plaintiffs changed course and moved to compel arbitration four days before the trial setting. Id.
Similarly, in Professional Advantage v. West Gulf Maritime Association, the parties engaged in
significant discovery producing tens of thousands of documents and deposing three witnesses. No.
01-15-01006-CV, 2016 WL 2586690, at *4 (Tex. App.—Houston [1st Dist.] May 5, 2016, no pet.).
Also, the defendant did not move for arbitration for over three years. Id. Here, Remedy never
opposed arbitration, conducted little to no discovery, and has not taken any depositions. Thus, for
these reasons and the many other reasons outlined in Remedy’s previous filings, Perez has wholly
failed to establish that Remedy waived its right to arbitration.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff Remedy Roofing, Inc. requests that
the Court grant its Motion to Compel Arbitration, abate this case so all parties may participate in
binding arbitration pursuant to the Agreement, deny Javier Perez’s Motion to Stay Arbitration and
for such other and further relief to which Plaintiff may be equitably or justly entitled.
4
Electronically Filed
10/6/2023 12:46 PM
Hidalgo County District Clerks
Reviewed By: Alfonso Esparza
Respectfully submitted,
WEST MERMIS, PLLC
By: /s/ Joshua W. Mermis
Joshua W. Mermis
State Bar No. 24039055
Sydney E. Koby
State Bar No. 24126103
1301 McKinney, Suite 3120
Houston, Texas 77010
(713) 255-3550 - Telephone
(713) 255-3551 – Facsimile
jmermis@westmermis.com
skoby@westmermis.com
ATTORNEYS FOR PLAINTIFF
REMEDY ROOFING, INC.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument has been
served upon the following in accordance with the Texas Rules of Civil Procedure on this 6th day
of October 2023.
Larry Moreno
LARRY MORENO P.C.
P.O. Box 839
Helotes, Texas 78023
Tel: (210) 265-7216
E-mail: AttorneyMoreno@protonmail.com
ATTORNEY FOR JAVIER PEREZ
/s/ Joshua W. Mermis
Joshua W. Mermis
5
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Filing At West Mermis on behalf of Joshua Mermis
Bar No. 24039055
efiling@westmermis.com
Envelope ID: 80336676
Filing Code Description: Motion (No Fee)
Filing Description: REMEDY ROOFING, INC.???S BENCH BRIEF IN
SUPPORT OF MOTION TO COMPEL ARBITRATION
Status as of 10/6/2023 1:08 PM CST
Associated Case Party: Remedy Roofing, Inc.
Name BarNumber Email TimestampSubmitted Status
Stephen Dwyer sdwyer@westmermis.com 10/6/2023 12:46:31 PM SENT
Joshua Mermis jmermis@westmermis.com 10/6/2023 12:46:31 PM SENT
Lynette Samolinski efiling@westmermis.com 10/6/2023 12:46:31 PM SENT
Sydney Koby skoby@westmermis.com 10/6/2023 12:46:31 PM SENT
Victoria Martinez vmartinez@westmermis.com 10/6/2023 12:46:31 PM SENT
Associated Case Party: Javier Perez
Name BarNumber Email TimestampSubmitted Status
Larry Moreno AttorneyMoreno@protonmail.com 10/6/2023 12:46:31 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
CYNTHIA DELBOSQUES CYNTHIA.DELBOSQUELAW@LIVE.COM 10/6/2023 12:46:31 PM SENT
SOFIA RAMON SRAMON@RAMONWORTHINGTON.COM 10/6/2023 12:46:31 PM SENT
JAVIER PEREZ JV1276@AOL.COM 10/6/2023 12:46:31 PM ERROR
Preview
Electronically Filed 10/6/2023 12:46 PM Hidalgo County District Clerks Reviewed By: Alfonso Esparza CAUSE NO. C-1052-22-A REMEDY ROOFING, INC. § IN THE DISTRICT COURT Plaintiff, § § v. § 92ND JUDICIAL DISTRICT § JAVIER PEREZ § Defendant. § HIDALGO COUNTY, TEXAS REMEDY ROOFING, INC.’S BENCH BRIEF IN SUPPORT OF MOTION TO COMPEL ARBITRATION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Plaintiff Remedy Roofing, Inc. (“Remedy”), and files this Bench Brief in Support of its Motion to Compel Arbitration and would respectfully show the Court as follows: Summary of Brief Perez has not demonstrated any prejudice that would warrant denying Remedy’s arbitration request. Texas courts have repeatedly provided that public policy favors arbitration and that “in close cases, the strong presumption against waiver should govern.” Remedy therefore asks this Court to grant its Motion to Compel Arbitration. Argument and Authorities There is no dispute that Remedy met its initial burden to compel arbitration: a valid arbitration agreement exists and the claims in issue fall within the scope of the agreement. Thus, the burden shifts to Perez to establish that Remedy waived its right to arbitrate. However, Perez has wholly failed to meet this burden. A party asserting waiver as a defense to arbitration must satisfy both prongs of the two- part test—the party seeking arbitration substantially invoked the judicial process and the opposing party suffered prejudice as a result. G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 511–12 (Tex. 2015). Because public policy favors arbitration, there is a strong presumption against waiver, and a party opposing arbitration on waiver grounds faces a “high hurdle.” Kennedy 1 Electronically Filed 10/6/2023 12:46 PM Hidalgo County District Clerks Reviewed By: Alfonso Esparza Hodges, L.L.P. v. Gobellan, 433 S.W.3d 542, 543 (Tex. 2014); see also Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 898 (Tex. 1995) (“a presumption exists against the waiver of a contractual right to arbitration”). It is well established that any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration and in close cases, the “strong presumption against waiver” should govern. In re Serv. Corp. Int'l, 85 S.W.3d 171, 174 (Tex. 2002); Baty v. Bowen, Miclette & Britt, Inc., 423 S.W.3d 427, 434 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). Perez argues that Remedy substantially invoked the judicial process. Both parties address this in their respective filings. But since Perez must also meet the prejudice prong, Remedy’s brief will focus on how Perez fails to satisfy it. First, recent Texas court decisions do not support Perez’s contention that Morgan v. Sundance eliminated the prejudice prong of the waiver analysis. See Pearland Urban Air, LLC v. Rockwood Alls., Inc., No. 14-22-00499-CV, 2023 WL 4359992, at *2 (Tex. App.—Houston [14th Dist.] July 6, 2023, no pet.) (“[b]ecause public policy favors arbitration, there is a strong presumption against waiver”); see also Momentum Project Controls, LLC v. Booflies to Beefras LLC, No. 14-22-00712-CV, 2023 WL 4196584, at *3 (Tex. App.—Houston [14th Dist.] June 27, 2023, pet. filed) ([b]ecause arbitration is favored, the ‘hurdle’ to demonstrate waiver by litigation conduct is a high one). Perez's assertion that the Supreme Court diminished the burden to establish waiver is without merit. Perez has presented little to no argument supporting the contention that he will be prejudiced if this Court grants Remedy’s Motion to Compel Arbitration. See In re Bruce Terminix Co., 988 S.W.2d 702, 704 (Tex. 1998) (“Even substantially invoking the judicial process does not waive a party's arbitration rights unless the opposing party proves that it suffered prejudice as a result”); see also Momentum Project Controls, 2023 WL 4196584, at *5 (“[s]ubstantial invocation 2 Electronically Filed 10/6/2023 12:46 PM Hidalgo County District Clerks Reviewed By: Alfonso Esparza of the judicial process is not enough; there also must be prejudice”). Perez argues that he will be prejudiced because he has incurred “substantial” attorney’s fees in litigating this case. However, prior to Remedy filing its Motion to Compel Arbitration, Perez’s involvement in this lawsuit was very minimal. This is evidenced by Perez’s repeated failure to appear at hearings with an attorney, failure to respond to discovery, and failure to file any substantive answer to this lawsuit for over a year. Nevertheless, courts have not given considerable weight to this factor. Even when considered, they found $200,000.00 in attorney’s fees over two years was not enough to show prejudice. See In re Vesta, 192 S.W.3d at 763. In fact, courts have recognized that the very purpose of arbitration is to avoid the time and expense of a trial and appeal. In re Bruce Terminix Co., 988 S.W.2d at 704; see also Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272–73 (Tex. 1992). As previously noted, the parties’ arbitration clause provides “the arbitrator’s final award shall be issued within ninety (90) days after service of the arbitration demand on the other party.” The parties will almost certainly incur less attorney’s fees and other costs through the arbitration process than they would in a full trial on the merits. Perez’s argument that he is prejudiced by expending time and attorney’s fees in court contradicts itself—he is asking the court to keep it out of arbitration so he can spend even more money in litigation. Prejudice is typically found where a party uses the judicial processes to gain access to information that would not have been discoverable in arbitration. In re Bruce Terminix Co., 988 S.W.2d at 704. Moreover, it is well established that “when only a minimal amount of discovery has been conducted, which may also be useful for the purpose of arbitration, the court should not ordinarily infer waiver based upon prejudice.” Id. Here, the minimal discovery that has been exchanged in this lawsuit was by Remedy to Perez’s requests for production and interrogatories, 3 Electronically Filed 10/6/2023 12:46 PM Hidalgo County District Clerks Reviewed By: Alfonso Esparza which will be useful in the parties’ arbitration. On the other hand, Perez failed to respond to Remedy’s request for disclosure and admissions. The only document Perez produced were photographs taken by him and his expert. While the arbitration agreement only allows discovery if the parties agree, Perez is the only party that has benefited from discovery in this litigation. In Perez's latest filing, he cites Perry Homes v. Cull and Professional Advantage v. West Gulf Maritime Association to bolster his argument that arbitration would prejudice him. But he omits any meaningful similarities between these cases and the case at hand—because none exist. In Perry Homes v. Cull, the plaintiff homeowners vigorously opposed arbitration in their pleadings and in open court. 258 S.W.3d 580, 584 (Tex. 2008). After conducting extensive discovery about every aspect of the merits, taking ten depositions, and deposing the defendants’ experts, the plaintiffs changed course and moved to compel arbitration four days before the trial setting. Id. Similarly, in Professional Advantage v. West Gulf Maritime Association, the parties engaged in significant discovery producing tens of thousands of documents and deposing three witnesses. No. 01-15-01006-CV, 2016 WL 2586690, at *4 (Tex. App.—Houston [1st Dist.] May 5, 2016, no pet.). Also, the defendant did not move for arbitration for over three years. Id. Here, Remedy never opposed arbitration, conducted little to no discovery, and has not taken any depositions. Thus, for these reasons and the many other reasons outlined in Remedy’s previous filings, Perez has wholly failed to establish that Remedy waived its right to arbitration. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff Remedy Roofing, Inc. requests that the Court grant its Motion to Compel Arbitration, abate this case so all parties may participate in binding arbitration pursuant to the Agreement, deny Javier Perez’s Motion to Stay Arbitration and for such other and further relief to which Plaintiff may be equitably or justly entitled. 4 Electronically Filed 10/6/2023 12:46 PM Hidalgo County District Clerks Reviewed By: Alfonso Esparza Respectfully submitted, WEST MERMIS, PLLC By: /s/ Joshua W. Mermis Joshua W. Mermis State Bar No. 24039055 Sydney E. Koby State Bar No. 24126103 1301 McKinney, Suite 3120 Houston, Texas 77010 (713) 255-3550 - Telephone (713) 255-3551 – Facsimile jmermis@westmermis.com skoby@westmermis.com ATTORNEYS FOR PLAINTIFF REMEDY ROOFING, INC. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument has been served upon the following in accordance with the Texas Rules of Civil Procedure on this 6th day of October 2023. Larry Moreno LARRY MORENO P.C. P.O. Box 839 Helotes, Texas 78023 Tel: (210) 265-7216 E-mail: AttorneyMoreno@protonmail.com ATTORNEY FOR JAVIER PEREZ /s/ Joshua W. Mermis Joshua W. Mermis 5 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Filing At West Mermis on behalf of Joshua Mermis Bar No. 24039055 efiling@westmermis.com Envelope ID: 80336676 Filing Code Description: Motion (No Fee) Filing Description: REMEDY ROOFING, INC.???S BENCH BRIEF IN SUPPORT OF MOTION TO COMPEL ARBITRATION Status as of 10/6/2023 1:08 PM CST Associated Case Party: Remedy Roofing, Inc. Name BarNumber Email TimestampSubmitted Status Stephen Dwyer sdwyer@westmermis.com 10/6/2023 12:46:31 PM SENT Joshua Mermis jmermis@westmermis.com 10/6/2023 12:46:31 PM SENT Lynette Samolinski efiling@westmermis.com 10/6/2023 12:46:31 PM SENT Sydney Koby skoby@westmermis.com 10/6/2023 12:46:31 PM SENT Victoria Martinez vmartinez@westmermis.com 10/6/2023 12:46:31 PM SENT Associated Case Party: Javier Perez Name BarNumber Email TimestampSubmitted Status Larry Moreno AttorneyMoreno@protonmail.com 10/6/2023 12:46:31 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status CYNTHIA DELBOSQUES CYNTHIA.DELBOSQUELAW@LIVE.COM 10/6/2023 12:46:31 PM SENT SOFIA RAMON SRAMON@RAMONWORTHINGTON.COM 10/6/2023 12:46:31 PM SENT JAVIER PEREZ JV1276@AOL.COM 10/6/2023 12:46:31 PM ERROR