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Click here for the full text of this decision FACTS:Southwind Group Inc. challenges the trial court’s order denying its motion to compel arbitration of Jesstin R. Landwehr and Joyce Landwehr’s breach of employment agreement claims. Southwind has brought an interlocutory appeal pursuant to the Texas Arbitration Act and a petition for writ of mandamus pursuant to the Federal Arbitration Act. The primary issue in these proceedings is whether Southwind waived its right to arbitrate the Landwehrs’ claims. HOLDING:The court reverses the trial court’s order and remands the cause with instructions for the trial court to compel arbitration of the Landwehrs’ claims against Southwind. The court denies Southwind’s petition for writ of mandamus. The employment agreement does not provide whether the TAA or the FAA applies. Because the record does not show that the employment agreement involved or affected interstate commerce, the court concludes that the TAA applies. A party does not substantially invoke the judicial process merely by participating in discovery. In Re: Bruce Terminix Co., 988 S.W.2d 702 (Tex. 1998)(orig. proceeding). However, pursuing extensive discovery may substantially invoke the judicial process. Nationwide of Bryan, Inc. v. Dyer, 969 S.W.2d 518 (Tex. App. – Austin 1998, no pet.). Southwind and the Landwehrs exchanged written discovery and took depositions before Southwind sought to compel arbitration. The record shows that Southwind sent the Landwehrs a request for disclosure, a request for admissions; and two requests for production. The record does not contain copies of the written discovery or the depositions. Without copies of the discovery, the record does not demonstrate the extent of the discovery undertaken by the parties or the extent of discovery related to the Landwehrs’ claims. Thus, the record does not show that Southwind engaged in extensive discovery related to the Landwehrs’ claims. The discovery in this case is similar to the discovery in In Re: Nasr, 50 S.W.3d 23 (Tex. App. – Beaumont 2001, orig. proceeding). The Nasr court held that the party seeking arbitration did not substantially invoke the judicial process by participating in discovery. Likewise, the court finds that Southwind did not substantially invoke the judicial process by participating in discovery. Southwind moved for a continuance of a trial setting and requested a new trial setting. These actions did not seek a resolution of the merits of the Landwehrs’ claims. Southwind did not try to obtain a satisfactory result on the Landwehrs’ claims in the trial court before moving to compel arbitration. Southwind did not substantially invoke the judicial process. OPINION:McCall, J.; Wright, CJ, McCall and Strange, JJ.

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