in Re: C. F. Jordan ( 2008 )

NUMBER 13-08-372-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE C.F. JORDAN COMMERCIAL, L.P.
On Petition for Writ of Mandamus
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Yañez and Benavides
Per Curiam Memorandum Opinion1
Relator, C. F. Jordan Commercial, L.P., filed a petition for writ of mandamus in the
above cause arguing that the trial court abused its discretion in denying relator’s motion
to compel arbitration.2 We deny the petition for writ of mandamus.
1
See T EX . R . A PP . P . 5 2 .8 (d ) (“W hen denying relief, the court m ay hand dow n an opinio n but
is not required to do so.”); T EX . R . A PP . P . 47.4 (distinguishing opinions and m em orandum opinions).
2
C.F. Jordan Com m ercial, L.P. also brought an interlocutory appeal of this order under the Texas
General Arbitration Act. See C.F. Jordan Commercial, L.P. v. Donna I.S.D., No. 13-08-00302-CV, 2008 Tex.
App. LEXIS ___ (Tex. App.–Corpus Christi June __, 2008, no pet. h.). This Court typically consolidates
parallel proceedings in arbitration m atters. See In re Valero Energy Corp., 968 S.W .2d 916, 916-17 (Tex.
1998) (explaining that when a court of appeals is confronted with an interlocutory appeal and a m andam us
proceeding seeking to com pel arbitration that the better course of action is to consolidate the two proceedings
and render a decision that disposes of both sim ultaneously). However, we have chosen not to do so in the
instant case because of the differing procedural postures of these m atters.
Relator filed a motion to compel arbitration and for dismissal or abatement of the
underlying suit pending arbitration on or about May 22, 2006. The trial court denied this
motion on January 11, 2007. Relator filed its petition for writ of mandamus on June 10,
2008. Trial in this matter is scheduled for June 30, 2008. In the underlying proceeding,
relator has filed cross claims and motions for leave to designate responsible third parties,
entered an agreed order for court-ordered mediation, and propounded and responded to
substantial discovery.
Waiver must be decided on a case-by-case basis and courts should look to the
totality of the circumstances. Perry Homes v. Cull, 51 Tex. Sup. J. 819, 2008 Tex. LEXIS
423, *23 (Tex. May 2, 2008) (listing various factors for considering in considering the
totality of circumstances). However, it is clear that parties who “conduct full discovery, file
motions going to the merits, and seek arbitration only on the eve of trial” waive any
contractual right to arbitration. In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 764 (Tex.
2006) (orig. proceeding) (per curiam); see In re Citigroup Global Mkts., Inc., 51 Tex. Sup.
J. 909, 2008 Tex. LEXIS 451, *1 (Tex. May 16, 2008) (orig. proceeding) (per curiam).
The Court, having examined and fully considered the petition for writ of mandamus
and response thereto is of the opinion that relator has not shown itself entitled to the relief
sought. Accordingly, the petition for writ of mandamus is DENIED. See TEX . R. APP. P.
52.8(a). Relator’s motion for emergency stay of the trial court proceedings, filed this day,
is DISMISSED as moot.
PER CURIAM
Memorandum Opinion delivered and
filed this 20th day of June, 2008.
2