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Click here for the full text of this decision FACTS:The appellee, Shalene Portman, was hired to sell Texas Residential Mortgage’s products to home owners and home buyers. Portman sued Texas Residential Mortgage over commissions allegedly due to her. The suit was filed May 6, 2003. On March 8, 2004, pursuant to the alternative dispute resolution provision of the parties’ agreement, Texas Residential moved to compel arbitration. This provision required disputes first to be submitted to mediation, and if that didn’t work, to go to arbitration. Portman responded that Texas Residential had waived its right to compel arbitration by participating in the litigation process for nearly a year before moving to compel arbitration. Though the trial court held a hearing on the motion to compel, no evidence was offered. All that was before the trial court was a copy of the relevant clause from the parties’ agreement. The trial court denied the motion, and Texas Residential appeals. HOLDING:Reversed and remanded. The court recites the test for determining waiver: 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? The court finds that, even if it assumes that Texas Residential substantially invoked the judicial process, Portman offers no evidence that she suffered prejudice as a result of Texas Residential’s 10-month delay in moving to compel arbitration. Though Portman says she put in work preparing for trial during those 10 months, she does not identify what work she did, how much it cost her or what work she would not have done in anticipation of an arbitration hearing. OPINION:Kerry FitzGerald, J.; Wright, FitzGerald and Lang-Miers, JJ.

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