Ascendant Anesthesia Pllc v. Abazi, 2011 Tex. App. LEXIS 5996

Ascendant provides anesthesia services; Abazi, a former employee, was terminated after about a year of employment.
Ascendant filed suit seeking injunctive relief, damages, and declaratory judgment; Abazi counterclaimed and third-party claims were filed against Toussaint and AccuPro.
An arbitration provision in Ascendant's Policies required arbitration for disputes between an employee and Ascendant, with carve-outs for noncompetition, non solicitation, and disclosure of information.
Ascendant moved to compel arbitration of Abazi's damages claims and Toussaint's individual claims; the trial court denied the motion.
Abazi argued the arbitration provision applied only to current employees and that Toussaint lacked standing to move for arbitration; Ascendant argued the clause is broad and covers former employees and non-signatories through agency and intertwinement.
On appeal, the Texas Court of Appeals held the arbitration provision encompasses former employees and Toussaint's claims, and Ascendant did not waive arbitration rights.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does arbitration apply to Abazi as a former employee?	Ascendant: clause covers all employees; no exclusion for former employees.	Abazi: term 'employee' limits to current employees; former-status precludes arbitration.	Arbitration applies to former employees; clause broad enough.
Did Ascendant waive arbitration rights by substantially invoking the judicial process?	Ascendant did not suffer prejudice; actions insufficient to constitute waiver.	Abazi: Ascendant's suit and discovery prejudiced her by forcing litigation before arbitration.	No waiver; arbitration rights preserved.

In re Kellogg Brown & Root, Inc., 166 S.W.3d 732 (Tex. 2005) (arbitration should be compelled where agreement covers the dispute and scope is broad)
In re Labatt Food Serv., L.P., 279 S.W.3d 640 (Tex. 2009) (abstain deference on legal determinations in arbitration review; contract interpretation standard)
Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008) (waiver factors; substantial invocation requires prejudice)
In re Vesta Ins. Group, Inc., 192 S.W.3d 764 (Tex. 2006) (substantial invocation factors and prejudice assessment)
Small v. Specialty Contractors, Inc., 310 S.W.3d 639 (Tex. App.-Dallas 2010) (totality of circumstances in waiver analysis; strong presumption against waiver)
In re Prudential Sec., Inc., 159 S.W.3d 279 (Tex. App.-Houston [14th Dist.] 2005) (factually intertwined claims can fall under arbitration)
BDO Seidman, LLP v. J.A. Green Dev. Corp., 327 S.W.3d 852 (Tex. App.-Dallas 2010) (presumption in favor of arbitrability; broad clauses favored)