The Fort Worth Court of Appeals, in the case of Northwest Const. Co., Inc. v. Oak Partners, L.P., ___ S.W.3d ____, 2008 WL 623238 (Tex. App.—Fort Worth Mar. 6, 2008, no pet h.), determined that a general contractor waived its right to arbitration by substantially invoking the judicial process to its opponents’ detriment as evidenced by its participation in the discovery process and active pursuit of relief. Northwest Construction Co. (Northwest) entered into a contract with Oak Partners, LP to construct an assisted living center. After the center failed to pass state inspections, Oak Partners filed a breach of contract claim against Northwest. Several subcontractors also filed claims against Northwest. In determining whether Northwest had waived its right to arbitration, the court applied the 2-prong test from Jones v. Citibank (South Dako ta), N.A., 235 S.W.3d 333, 340 (Tex.App.-Fort Worth, 2007 no pet. h.), which asks: (1) did the party seeking arbitration substantially invoke the judicial process, and (2) did the opposing party prove that it suffered prejudice as a result.

      Northwest filed a motion to compel arbitration nineteen months after it filed its answer. During such time, Northwest served four sets of interrogatories, and one set of requests for production and request for admissions to Oak Partners. Northwest also served one set of interrogatories, requests for disclosure, and requests for production on the subcontractors. Northwest filed a counter-claim and amended counterclaim against Oak Partners, cross-claims against the subcontractors, and a motion for summary judgment prior to requesting arbitration. The Court found that Northwest satisfied the first prong of the Jones test recognizing that Northwest was prepared to avail itself to the judicial process so long as it was able to achieve the results it desired.

      The second prong of the Jones test requires the opposing party to prove that it suffered prejudice as a result of the moving party availing itself to the judicial process. Here Northwest contended that all the discovery it propounded would have been available in the arbitration process. The court agreed with Oak Partners that arbitration rules do not provide for requests for admissions and for interrogatories. The court also held that the attorney fees that Oak Partners incurred as a result of Northwest’s engagement in the suit were also proof of prejudice from Northwest’s participation in the judicial process. Therefore, the court found that Northwest satisfied the Jones two part test and held that Northwest waived their rights to arbitration as to Oak Partners. Interestingly, none of the subcontractors presented evidence to the trial court regar ding prejudice and, therefore, failed the second part of the test. As to the subcontractors, the court held the trial court erred by refusing to compel arbitration with Northwest.