RSL FUNDING, LLC v. CHEVEZE D. PIPPINS, DANIEL P. MORRIS, DONNA M. O'BRIEN, METROPOLITAN LIFE INSURANCE COMPANY, METLIFE INSURANCE COMPANY OF CONNECTICUT AND METLIFE INVESTORS USA INSURANCE CO.

The trial court and appellate decisions underlying this interlocutory appeal predate, but

implicate, our decision in Kennedy Hodges, L.L.P. v. Gobellan, 433 S.W.3d 542 (Tex. 2014). There

we said that “a party who litigate[s] one claim with an opponent d[oes] not substantially invoke the

litigation process for a related yet distinct claim against another party with whom it had an arbitration

agreement.” Id. at 545 (citing In re Serv. Corp. Int’l, 85 S.W.3d 171, 175 (Tex. 2002)).

Here, one of the parties, petitioner RSL Funding, LLC (RSL), has arbitration agreements with

three individuals—Cheveze Pippins, Daniel Morris, and Donna O’Brien (collectively,

Individuals)—who are parties and owned annuity contracts they agreed to sell to RSL or its designee.

However, neither RSL nor the Individuals have arbitration agreements with the companies that are

also parties and wrote the annuity contracts—Metropolitan Life Insurance Company, MetLife

Insurance Company of Connecticut, and MetLife Investors USA Insurance Company (collectively

MetLife). RSL sued MetLife and the Individuals in the County Court at Law No. 4 of Harris County

(CCL) for a declaratory judgment after MetLife refused to honor contracts by which the Individuals

sold their annuities. The parties also ended up in a district court suit involving the same subject

matter. At first the individuals were aligned with RSL, but, later, disputes arose between them. RSL

initiated arbitration with the Individuals and sought to stay the CCL suit pending its completion. The

CCL denied the motion and RSL pursued this interlocutory appeal. The court of appeals affirmed,

holding RSL waived its right to arbitrate by its litigation conduct involving both the Individuals and

MetLife. 424 S.W.3d 674, 685-87 (Tex. App.—Houston [14th Dist.] 2014). In a footnote, the

appeals court said it would also affirm because RSL did not challenge a separate ground on which

the trial court could have denied the motion. Id. at 687 n.24.

We conclude that RSL did not waive its right to arbitrate by litigation conduct, but

nevertheless affirm.

The Individuals owned annuities issued by MetLife. The annuity contracts do not contain,

and are not subject to, arbitration agreements. Each of the Individuals assigned their annuities to

RSL in exchange for immediate lump-sum payments and executed bills of sale to RSL Special-IV,

Ltd. (RSL Special). The assignments included clauses providing for dispute arbitration pursuant 1

to the Federal Arbitration Act (FAA). See 9 U.S.C. § 3. MetLife was not a party to the assignments,

objected to them, and refused to honor them. MetLife’s refusal to honor the assignments precipitated

O’Brien’s son and daughter, as beneficiaries, were parties to the O’Brien assignment.1

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RSL’s suing MetLife and the Individuals in the CCL in June 2011, seeking a declaratory judgment

that its agreements with the Individuals were binding on MetLife. RSL attached affidavits from the

Individuals to its petition. In the affidavits, the Individuals averred that they had sold and assigned

their annuities to RSL, “its successors, and/or its assigns” and stated that if a dispute arose as to the

binding nature of the assignment, they joined RSL in seeking “a declaratory judgment . . . that the

[assignment documents] are valid and binding on all parties to this action, [and] that MetLife be

ordered to irrevocably make the Assigned Payments otherwise due me, now to RSL Funding or its

assignee.”

Pippins, in July, and Morris, in August, informed RSL they were terminating their

agreements with RSL so they could re-assign their annuity rights. In September, RSL moved the

CCL to order Pippins to arbitrate based on his seeking to cancel his agreement and, in a separate

motion, to have MetLife make any payments due under the policies either to Marla Matz, RSL’s

assignee, or into the registry of the court. Those motions were followed shortly by MetLife filing

a counterclaim against RSL and cross-claims against the Individuals for declaratory judgment and

seeking to interplead funds owed under the annuity contracts. In October, the CCL ordered MetLife

to deposit funds into the registry of the court as they became due under the contracts, and neither

RSL nor the Individuals allege MetLife has failed to comply with the order.

In November 2011, the Individuals filed counter- and cross-claims alleging that RSL

breached its contract to pay the full lump sums due and MetLife breached its contract and its

fiduciary duty and acted in bad faith by blocking the assignments to RSL. The Individuals sought

transfer of the CCL suit to district court on the basis that damages alleged in their counter- and cross

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claims exceeded the CCL’s jurisdiction. RSL supported their motion to transfer the CCL case, but

the court denied it. The Individuals nonsuited their CCL claims on November 30, 2011, and sued

both RSL and MetLife in Harris County district court the same day. As to RSL, the Individuals

claimed they sold their annuities to RSL and it breached the contract by failing to pay the full lump

sum agreed to. On December 1, 2011, RSL nonsuited its claims against the Individuals as well as

MetLife in the CCL and sought dismissal of MetLife’s claims that were pending in there. On

January 19, 2012, RSL cross-claimed against MetLife in the district court suit for declaratory

judgment and breach of contract as to the various annuities and agreements; it made no claim against

the Individuals.

RSL filed a plea to the jurisdiction in the CCL based on the amount in controversy. It also

filed a motion for summary judgment in the CCL as to MetLife’s obligation to honor Pippins’s

assignment of his annuity, alleging MetLife’s corporate representative had conceded in a deposition

that MetLife must follow Pippins’s instructions to redirect payments.

On January 30, 2012, the Individuals moved the CCL to distribute to them the payments

MetLife had made into its registry. RSL responded in mid-February by (1) initiating arbitration

proceedings with Pippins and O’Brien because they were attempting to exercise control over money

belonging to RSL, and (2) moving the CCL for a stay of the CCL proceedings pending completion

of arbitration. The motion for a stay was denied. Meanwhile, MetLife moved for abatement in the

district court.

In March, RSL added Morris as a party to the arbitration it was seeking and moved the CCL

to reconsider a stay of its proceedings pending completion of arbitration. The Individuals countered

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by opposing RSL’s motion and requesting the CCL to stay the arbitration proceedings. The parties’

eventful journey in the trial courts, for the most part, came to a temporary end when the district court

abated its case; the CCL denied RSL’s plea to the jurisdiction; the CCL refused to abate the suit

pending there; the CCL stayed arbitration; and RSL filed this interlocutory appeal.

A divided court of appeals affirmed. 424 S.W.3d at 687. Referencing Perry Homes v. Cull,

258 S.W.3d 580 (Tex. 2008), the appeals court held that RSL, through its actions in the trial courts,

had impliedly waived its rights to arbitrate with the Individuals by substantially invoking the judicial

process and that both MetLife and the Individuals had been prejudiced. 424 S.W.3d at 686. In a

footnote, the court concluded that an alternative ground for affirming was that the Individuals raised

multiple grounds in opposition to RSL’s motion to stay the trial court proceedings, the trial court did

not state a specific reason for denying RSL’s motion to stay, and on appeal RSL failed to challenge

one of the grounds the Individuals raised in opposing the stay—nonjoinder of RSL’s assignees in

the arbitration—and on which the trial court could have denied RSL’s motion. Id. at 687 n.24. The

court of appeals did not address the two additional grounds of bias and unconscionability raised by

the Individuals in the CCL, although RSL addressed them in its briefing in the court of appeals.

Chief Justice Frost dissented. She concluded that RSL, though active in the trial court, did

not invoke the judicial process with regard to any arbitrable claims. Id. at 687 (Frost, C.J.,

dissenting). She reasoned RSL’s original inclusion of the Individuals—the only parties with whom

RSL had arbitration agreements—as defendants in the CCL was required by the Uniform Declaratory

Judgment Act, and thus should not be considered in determining whether RSL waived its right to

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arbitrate with them. Id. at 689. Further, Chief Justice Frost concluded RSL’s pursuit of non

arbitrable claims in litigation did not prejudice the individuals. Id. at 690-91.

In seeking to sustain the decisions of the court of appeals and the trial court, MetLife—who,

as previously noted, does not have an arbitration agreement with RSL—asserts RSL waived its

arbitration rights with the Individuals. MetLife claims the Individuals and it were prejudiced by

RSL’s forum-shopping that caused them to incur significant unnecessary pre-trial costs. It urges that

RSL’s original CCL suit sought affirmative relief from both MetLife and the Individuals; the suit

was not really a friendly declaratory judgment action with regard to the Individuals; and RSL forced

the Individuals to assert their claims to the annuity payments by requesting such funds be deposited

into the court registry pursuant to MetLife’s interpleader claim. MetLife further urges that RSL’s

actions in the separate lawsuit filed by the Individuals in district court must also be considered when

determining whether RSL waived its right to arbitrate with the Individuals.

None of the Individuals filed briefs in the court of appeals, and only Morris has appeared

here. Although RSL’s standing was not challenged in either court below, Morris argues RSL lacked

standing to either bring the initial suit in the CCL or compel arbitration of its disputes with the

Individuals because there is no evidence RSL is acting as servicing agent for RSL Special or Matz.

He further alleges the assignment agreement to RSL conveyed no rights for RSL to enforce if the

agreement was executed after the bill of sale to RSL Special. Morris also incorporates MetLife’s

arguments by reference, asserts RSL’s participation in discovery and delay from the initial filing of

suit to the seeking of arbitration was excessive, and RSL’s having made a motion for summary

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judgment weighs heavily in favor of the lower courts’ decisions that RSL waived its arbitration

rights.

RSL, on the other hand, argues it could not have, and did not, assert arbitrable claims in the

declaratory judgment suit it filed against MetLife because it did not have an arbitration agreement

with MetLife; it did not have disputes with the Individuals and included them as parties only because

the Declaratory Judgment Act necessitated its doing so; and including the Individuals was part of

a “friendly” declaratory judgment action in which they were cooperating. RSL contends that once

actual disputes arose with the Individuals, it acted reasonably quickly to seek arbitration of those

disputes. RSL also argues its participation in pre-trial discovery and motions before seeking

arbitration was limited to its disputes with MetLife and did not relate to or give rise to arbitrable

disputes with the Individuals.

We necessarily begin by addressing Morris’s standing argument, because standing is a

component of subject matter jurisdiction and absent jurisdiction, a court cannot address the merits

of a case. Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 580 (Tex. 2013). Candidly noting that

the question of RSL’s standing was not challenged in the trial court or court of appeals, Morris cites

Hagen v. Hagen, 282 S.W.3d 899, 911 (Tex. 2009), for the proposition that standing may be

challenged for the first time in this Court. Also noting that RSL brought suit alleging that it was a

special services entity for RSL Special and Matz, he urges there is no evidence RSL had any interest

in any of the contracts at issue.

We agree with Morris that standing may be challenged for the first time in this Court. See

id. But he cites no authority for his assertion that RSL lacks standing. Rather, he essentially

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questions whether RSL’s pleading of its special services arrangement with RSL Special and Matz

is sufficient to allege standing, and argues that factual inconsistencies in the record raise questions

as to RSL’s standing. Under circumstances such as this, where jurisdiction is challenged for the first

time on appeal, we have noted that plaintiffs do not have the same opportunities to replead, direct

discovery to, or otherwise address the jurisdictional issue as they have when standing is raised in the

trial court. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 96 (Tex. 2012) (“[A] plaintiff may not

have had fair opportunity to address jurisdictional issues by amending its pleadings or developing

the record when the jurisdictional issues were not raised in the trial court.”). Thus, when an

appellate court is the first to consider jurisdictional issues, it construes the pleadings in favor of the

plaintiff and, if necessary, reviews the record for evidence supporting jurisdiction. Id. If standing

has not been alleged or shown, but the pleadings and record do not demonstrate an incurable

jurisdictional defect, the case will be remanded to the trial court where the plaintiff is entitled to a

fair opportunity to develop the record relating to jurisdiction and to replead. See id. at 96-97;

Westbrook v. Penley, 231 S.W.3d 389, 394-95 (Tex. 2007).

We conclude RSL’s pleadings are sufficient to allege standing and the record before us does

not demonstrate an incurable jurisdictional defect. Moreover, because the case is returning to the

trial court for further proceedings, Morris will have opportunity to fully develop and present the issue

of RSL’s standing there, should he choose to do so. We next address the merits of RSL’s appeal.

The FAA generally requires courts to stay lawsuits involving arbitrable issues if a party with

the right to arbitration seeks a stay pending arbitration of those issues. 9 U.S.C. § 3; see also Moses

H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 26 n.34 (1983) (“[T]he state courts

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have almost unanimously recognized that the stay provision of § 3 applies to suits in state as well

as federal courts . . . .”); In re Bruce Terminix Co., 988 S.W.2d 702, 704 (Tex. 1998) (recognizing

that Texas applies the FAA stay provision). On motion of a party to an arbitration agreement the

trial court must order arbitration even though the order might result in less efficient, separate

proceedings. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217 (1985); see also Helena Chem.

Co. v. Wilkins, 18 S.W.3d 744, 750 (Tex. App.—San Antonio 2000), aff’d, 47 S.W.3d 486 (Tex.

2001).

A party’s right to arbitrate may be waived by its substantially invoking the judicial process

to the other party’s detriment. Perry Homes, 258 S.W.3d at 589-90. To effect such an implied

waiver, however, the conduct that substantially invoked the judicial process must have prejudiced

the other party to the arbitration agreement. See In re D. Wilson Constr. Co., 196 S.W.3d 774, 783

(Tex. 2006). When courts consider allegations of such a waiver, “[t]here is a strong presumption”

against it under the FAA. Id. The presumption governs in close cases. Perry Homes, 258 S.W.3d

at 593. And, to reiterate what we said in Kennedy Hodges, “a party who litigate[s] one claim with

an opponent d[oes] not substantially invoke the litigation process for a related yet distinct claim

against another party with whom it ha[s] an arbitration agreement.” 433 S.W.3d at 545.

Where facts are undisputed, whether the right to arbitrate has been waived is a matter of law

subject to de novo review on appeal. G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d

502, 511 (Tex. 2015). The party asserting waiver bears a heavy burden of proof to show the party

seeking arbitration has waived its arbitration right. In re Bruce Terminix Co., 988 S.W.2d at 705

(citing Walker v. J.C. Bradford & Co., 938 F.2d 575, 577 (5th Cir. 1991)). Whether waiver has

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occurred depends on the totality of the circumstances. Perry Homes, 258 S.W.3d at 591. The

analysis involves numerous factors, including whether the party asserting the right to arbitrate was

plaintiff or defendant in the lawsuit, how long the party waited before seeking arbitration, the reasons

for any delay in seeking to arbitrate, how much discovery and other pretrial activity the party seeking

to arbitrate conducted before seeking arbitration, whether the party seeking to arbitrate requested the

court to dispose of claims on the merits, whether the party seeking to arbitrate asserted affirmative

claims for relief in court, the amount of time and expense the parties have expended in litigation, and

whether the discovery conducted would be unavailable or useful in arbitration. See G.T. Leach, 458

S.W.3d at 512; Perry Homes, 258 S.W.3d at 590-92.

Generally, no one factor is, by itself, dispositive. Parties seeking to arbitrate have taken

several different types of action without substantially invoking the judicial process. Examples of

such actions include filing suit, conducting discovery, noticing depositions, taking depositions,

agreeing to trial settings, and moving for procedural disposition. See In re Bank One, N.A., 216

S.W.3d 825, 827 (Tex. 2007) (motion for new trial); In re D. Wilson Constr., 196 S.W.3d at 783

(filing suit); In re Vesta Ins. Grp., Inc., 192 S.W.3d 758, 764 (Tex. 2006) (taking depositions); In

re Serv. Corp. Int’l, 85 S.W.3d at 174-75 (seeking removal); In re Bruce Terminix, 988 S.W.2d at

704 (conducting discovery); EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90 (Tex. 1996) (requesting

discovery, noticing depositions, agreeing to trial setting). Additionally, asserting defensive

claims—even if such claims seek affirmative relief—does not waive arbitration. See G.T. Leach,

458 S.W.3d at 513 (declining to find waiver where a party filed a compulsory counterclaim). And

while delay by the party seeking arbitration may be a factor, we have found no waiver in cases where

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there were delays of as much as eight months and even two years. In re Fleetwood Homes of Tex.,

L.P., 257 S.W.3d 692, 694 (Tex. 2008); In re Vesta Ins. Grp., 192 S.W.3d at 763.

In a matter procedurally similar to this one, a developer sued a builder as part of two different

lawsuits. G.T. Leach, 458 S.W.3d at 509 n.4. The builder participated in discovery in both suits,

filed counterclaims in the first suit, pursued pre-trial motions such as to quash depositions, designate

responsible third parties, and transfer venue, and eventually sought to compel arbitration in the

second suit under its contract with the developer. Id. at 510, 513. The builder sought to arbitrate

four months from the time it was added as a defendant in the second suit, and eighteen months from

the time it was added as a defendant in the first suit. Id. at 512, 514. Yet we concluded the builder

did not waive its right to arbitrate by substantially invoking the judicial process. Id. at 514. We

noted many of the builder’s actions were defensive and spurred by procedural rules providing that

claims would be forfeited if action, such as filing the compulsory counterclaim, were not taken. Id.

at 513 (citing TEX. R. CIV. P. 97(a)). Similarly, the builder’s designation of responsible third parties

and trial experts was necessitated by procedural deadlines for doing so. Id. at 514 (citing TEX. CIV.

PRAC. & REM. CODE § 33.004(a); TEX. R. CIV. P. 193.6(a), 195.2). We held that the builder’s delay

and its asserting of claims as prescribed by rule or statute to avoid their forfeiture did not waive its

right to arbitrate. Id.

In Perry Homes, one of the few cases in which we have concluded a party waived its right

to arbitrate, the plaintiffs “vigorously opposed (indeed spurned) arbitration” for 14 months and then

moved to compel arbitration on the eve of trial. 258 S.W.3d at 584-85. Several defendants had

previously requested arbitration and the plaintiffs opposed it, but the trial court had not ruled on the

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motions. Id. at 585, 596. After concluding discovery, the plaintiffs moved to compel arbitration and

the trial court granted the motion. Id. at 585. We reversed, concluding that by opposing and

purposefully delaying arbitration while performing extensive discovery, the plaintiffs had prejudiced

the defendants by substantially invoking the judicial process. See id. at 595-97.

Although this case involves three groups of parties, the parties contend only that disputes

between two of the groups—the Individuals and RSL—are subject to arbitration. See In re Kellogg

Brown & Root, Inc., 166 S.W.3d 732, 738 (Tex. 2005) (“Because arbitration is contractual in nature,

the FAA generally does not require parties to arbitrate when they have not agreed to do so.”)

(internal quotations omitted). That being so, two principles come into play. First, whatever conduct

RSL took regarding its dispute with MetLife is not relevant to the question of whether RSL waived

its arbitration rights with the Individuals. See Kennedy Hodges, 433 S.W.3d at 545. Second, to

determine whether RSL waived its right to arbitrate with the Individuals, we look to the factual

nature of the disputes between RSL and the Individuals to determine whether and when an arbitrable

dispute arose and to analyze whether, after such a dispute arose, RSL’s conduct waived its right to

arbitrate. See In re Rubiola, 334 S.W.3d 220, 225 (Tex. 2011) (“To determine whether a claim falls

within the scope of the [arbitration] agreement, courts must focus on the factual allegations of the

complaint, rather than the legal causes of action asserted.”) (internal quotations omitted).

RSL sued MetLife and the Individuals only after MetLife refused to honor the Individuals’

assignments of their annuity contracts. The suit was for a judgment declaring the parties’ rights

under the assignments and contracts, but RSL did not allege any dispute with the Individuals.

Rather, RSL asserted only that MetLife breached its annuity contracts by refusing to honor the

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assignments, sought a declaratory judgment that the assignment agreements were enforceable, and

sought a judgment against MetLife for damages, interest, costs, and attorney’s fees. RSL did not

seek recovery from the Individuals. To the contrary, its actions were supported by the Individuals

as evidenced by their affidavits that, in part, waived citation because they fully “underst[ood] and

support[ed] the nature of this action for declaratory relief.”

The court of appeals disagreed that a “friendly” declaratory judgment action as between the

Individuals and RSL did not give rise to arbitrable disputes, referencing the transfer to RSL of

annuity payments that would result from such a declaratory judgment. 424 S.W.3d at 683-84. But

when RSL filed suit, the Individuals supported such a judgment and transfer. RSL’s filing of a

declaratory judgment action and making the Individuals parties to it when the Individuals agreed

with RSL’s position did not evidence an existing dispute between them subject to arbitration.

Further, like the builder in G.T. Leach, RSL asserted claims against the Individuals because it was

procedurally necessary in order to preserve certain rights. See TEX. CIV. PRAC. & REM.

CODE § 37.006(a) (“When declaratory relief is sought, all persons who have or claim any interest

that would be affected by the declaration must be made parties. A declaration does not prejudice the

rights of a person not a party to the proceeding.”). MetLife and Morris argue RSL’s inclusion of the

Individuals proves RSL knew it was seeking to terminate some of the Individuals’ rights. To the

contrary, what RSL sought was a declaratory judgment affirming what the Individuals had done and

were at that time ratifying by their affidavits: the assignment of their rights under the MetLife

policies. MetLife and Morris also argue RSL and the Individuals could have joined as plaintiffs, and

the fact the Individuals were made defendants proves RSL anticipated an adversarial relationship.

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But the existence of possible future disputes among parties to agreements where there is no current

dispute among them—such as was the situation here between RSL and the Individuals when RSL

filed suit—does not weigh in favor of a party having waived its right to arbitrate possible future

disputes by filing suit when there are no disputes.

In the alternative, MetLife and Morris argue that even if RSL’s original petition did not assert

arbitrable claims, RSL failed to timely seek arbitration when arbitrable disputes unquestionably arose

between the Individuals and RSL. They reference Pippins’s and Morris’s attempts to terminate their

agreements with RSL in 2011. But in September 2011, RSL moved the CCL to order Pippins to

arbitrate based on his seeking to cancel his agreement with RSL. And even though it failed at that

point to seek arbitration with Morris, the failure, in context of its other conduct, does not indicate

RSL intended to waive its right to arbitrate with Morris.

At the end of November, arbitrable disputes between RSL and the Individuals were clearly

evidenced when the Individuals counterclaimed in the CCL against RSL for breach of contract. But

the Individuals dismissed those counterclaims within a week, and RSL dismissed all of its claims

in the CCL the day after the Individuals dismissed theirs. At that point, there were no claims in the

CCL by the Individuals against RSL or by RSL against the Individuals—arbitrable or not. Then, on

November 30, 2011, the Individuals filed an entirely separate lawsuit in district court. On January

30, 2012, they went back to the CCL and sought to withdraw annuity payments MetLife had paid

into the registry of the court. Within two weeks, RSL sought arbitration with two of the Individuals,

and on February 17, 2012, moved to stay the litigation pending completion of arbitration.

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Even counting from Pippins’s attempt to terminate his contract in July 2011, RSL sought

arbitration with Pippins in less than three months, and with all the Individuals in less than eight

months. Those delays are not long enough to prove RSL waived its right to arbitrate. See In re

Fleetwood Homes, 257 S.W.3d at 694 (eight-month delay); In re Vesta Ins. Grp., 192 S.W.3d at 763

(two-year delay).

Beyond delay, MetLife and Morris argue RSL’s pretrial activities in the CCL waived its right

to arbitrate. They argue RSL participated in “extensive discovery,” pointing specifically to written

discovery served on MetLife and the depositions of MetLife representatives and the Individuals. But

those actions related to non-arbitrable disputes between RSL and MetLife. Further, any discovery

from the Individuals was initiated by MetLife, not RSL. See G.T. Leach, 458 S.W.3d at 513-14

(holding passive participation in extensive pre-trial discovery does not waive the right to arbitrate).

RSL’s participation in the MetLife-noticed depositions of the Individuals was limited to objecting

to the form of questions. See In re Vesta Ins. Grp., 192 S.W.3d at 763 (holding a proponent of

arbitration is not responsible for extensive discovery by another party).

MetLife and Morris argue RSL forced the Individuals to assert their claims to the annuity

payments by requesting that such funds be deposited into the CCL registry. But at the time of RSL’s

motion to deposit the annuity payments in the registry there was not any dispute between the

Individuals and RSL as to the right to the annuity payments; RSL and the Individuals agreed the

payments had been assigned to RSL. Having MetLife deposit the funds into the court’s registry

merely assured the funds would be available to whoever was entitled to them. It did not create a

dispute between RSL and the Individuals about who was entitled to them.

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MetLife and Morris next argue RSL’s February 2012 motion for summary judgment was a

request for affirmative relief. But at that point, the only remaining issue in the CCL suit involved

MetLife’s interpleader claims because both RSL and the Individuals had nonsuited their claims and

refiled in the district court. In any event, RSL requested the hearing on its motion for summary

judgment be deferred and reset several times while RSL also moved to stay the CCL proceedings

pending arbitration. See Keytrade USA, Inc. v. Ain Temouchent M/V, 404 F.3d 891, 897-98 (5th Cir.

2005) (holding that, regardless of whether a motion for summary judgment invokes the judicial

process, a simultaneous alternative effort to compel arbitration clearly indicates there is no intent to

waive arbitration).

Finally, MetLife and Morris assert RSL’s conduct in the district court action, such as filing

claims against MetLife, supports the court of appeals’ waiver finding. However, none of the actions

referenced by MetLife and reflected in the record were taken with regard to RSL’s disputes with the

Individuals. Accordingly, the referenced actions do not support a conclusion that RSL substantially

invoked the judicial process as to those disputes.

To summarize, RSL’s initial inclusion of the Individuals as defendants in the CCL action

underlying this appeal did not indicate intent to waive its right to arbitrate disputes that might arise

between it and the Individuals in the future. Resolution of the dispute created by MetLife’s refusal

to honor the agreements between RSL and the Individuals was the cause of the suit by RSL, and RSL

made the Individuals parties in order to protect its procedural rights. RSL’s participation in

discovery in the CCL suit was in response to MetLife’s actions, and RSL’s requests for affirmative

relief related to MetLife’s non-arbitrable counterclaims. The delay between the appearance of an

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arbitrable dispute with the Individuals and RSL’s initiation of arbitration was not so long as to

establish RSL intended to waive its right to arbitrate with the Individuals, especially in light of its

other efforts to avoid litigation disputes with the Individuals. The heavy burden to prove RSL

invoked the judicial process sufficiently to waive its contractual arbitration rights with the

Individuals was not met, and the court of appeals erred in so holding. See In re Bruce Terminix, 988

S.W.2d at 705. The failure of the first prong of implied waiver by invocation of the judicial process

renders analysis of the second prong—prejudice or detriment of the opponent—unnecessary. See

id. at 704 (“Courts will not find that a party has waived its right to enforce an arbitration clause by

merely taking part in litigation unless it has substantially invoked the judicial process to its

opponent’s detriment.”).

Although the court of appeals erred by holding RSL waived its right to arbitrate by litigation

conduct, in a footnote it said it would have affirmed the trial court’s rulings on the alternative basis

that RSL did not challenge one ground on which the CCL could have ruled in denying RSL’s motion

to stay the litigation—RSL failed to join its assignees in the arbitration. RSL urges that as to that

part of its decision, the court of appeals was in error. But after reviewing RSL’s briefs in the court

of appeals, we agree with the appeals court and will affirm.