Court of Appeals of Texas, Second District, Fort Worth
THE 342ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
LIVINGSTON, C.J.; GABRIEL and PITTMAN, JJ.
Legoland Discovery Centre (Dallas), LLC appeals from the
trial court's interlocutory order denying its motion to
compel arbitration. Because appellee Superior Builders, LLC
did not meet its heavy burden to show that Legoland waived
its right to arbitrate by substantially invoking the judicial
process as to Superior's claims raised against Legoland,
we reverse the trial court's order and remand for entry
of an order compelling arbitration.
hired Superior to be the general contractor for a
water-feature addition to Legoland's entertainment center
in Grapevine, Texas. The contract, drafted by Superior,
included the following arbitration clause:
Any controversy or claim arising out of or relating to this
contract, or the breach thereof, shall be settled by
arbitration administered by the American Arbitration
Association under its Construction Industry Arbitration
Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
contract also contained a choice-of-law clause providing that
Texas law would govern the contract and a venue clause
setting venue regarding "any action other than a lien
foreclosure may at [Superior's] option lie in . . .
believed that Superior did not complete the work contracted
for and damaged adjacent property. Legoland also began to
receive nonpayment notices from several of Superior's
subcontractors and suppliers: Sunbelt Rentals; Roofing &
Siding Specialists, Inc.; National Wholesale Supply, Inc.;
Love Service Company; H&H Pool Decks, Inc.; Chas. F.
Williams Co.; and Aeroflow. See Tex. Prop. Code Ann.
§§ 53.056-.057 (West 2014). Several of these
subcontractors filed lien affidavits, seeking payment.
See id. § 53.103 (West 2014). Legoland stopped
paying Superior, leaving an alleged balance due to Superior
of $89, 642.10. See id. § 53.102 (West 2014).
notified Superior that it would terminate the contract under
its terms unless Superior cured the defaults. Superior failed
to cure; therefore, Legoland notified Superior that Legoland
had terminated the contract and notified the affected
subcontractors of the termination. See id. §
53.107 (West 2014).
filed suit against Legoland on December 11, 2014, raising
claims for breach of contract, violation of the Prompt
Payment Act, quantum meruit, and promissory estoppel.
Superior also requested a declaration that it was entitled to
a lien against Legoland's entertainment center and for a
judgment "foreclosing on [its] Lien . . . together with
an order of sale." Legoland answered and filed
counterclaims for breach of contract, negligence, and breach
of express warranty based on Superior's alleged faulty
work and failure to pay its subcontractors. See Tex.
R. Civ. P. 97(a). Legoland included in its counterclaims a
request for disclosure. See Tex. R. Civ. P. 194.1,
amended its petition on April 1, 2015, adding as defendants
most of the subcontractors identified in Legoland's
counterclaims but raising the same claims against Legoland
that it raised in its original petition. Superior also
included a request for disclosure in its amended petition,
which Legoland responded to. On May 13, 2015, Legoland and
Superior both signed a letter agreement, reflecting that