Mark Menger v. Sherry Menger, 01-19-00921-CV

Parties (Marek and Sherry Menger) executed a binding mediated settlement agreement (MSA) in June 2017 that reserved certain property issues for future arbitration by mediator Jeffrey H. Uzick; the trial court’s Amended Decree (June 2018) incorporated the MSA and ordered mediation then binding arbitration with Uzick for disputes over interpretation or performance.
Uzick conducted several arbitrations resolving items listed in the MSA’s Exhibit A-1; the Amended Decree otherwise remained the final divorce decree.
In March–April 2019 Marek filed multiple enforcement petitions and affirmative claims in the trial court (including money judgments, indemnity relief, contempt), but did not request arbitration in those pleadings.
Marek pursued discovery (served RFPs, interrogatories, and disclosures); Sherry produced ~1,375 pages and attested to incurring roughly $77,107 in attorney’s fees; Marek set the case for trial on September 18, 2019 and unsuccessfully sought a continuance.
Six days before trial Marek filed a motion to abate and to compel arbitration; Uzick declined to serve as arbitrator (citing a grievance and perceived conflict); the trial court denied Marek’s motions, and Marek filed this interlocutory appeal.

Issue	Plaintiff's Argument (Marek)	Defendant's Argument (Sherry)	Held
Whether the trial court must compel arbitration of the enforcement petitions (scope/validity of arbitration clause)	Enforcement disputes concern interpretation/performance of the Amended Decree/MSA and thus fall within the decree’s arbitration clause	Marek waived arbitration by substantially invoking the judicial process; arbitration also precluded by res judicata, Marek’s misconduct, and contract principles	Court held Marek waived arbitration (trial court did not abuse discretion in denying motion to compel)
Whether the court erred by failing to appoint a substitute arbitrator after Uzick declined to serve	A substitute arbitrator should be appointed so arbitration can proceed per the MSA/Decree	Uzick’s withdrawal and Marek’s conduct preclude arbitration; appointment unnecessary if arbitration waived	Not reached on the merits—court disposed of appeal on waiver grounds

Henry v. Cash Biz, LP, 551 S.W.3d 111 (Tex. 2018) (abuse-of-discretion standard for reviewing denial of motion to compel arbitration)
Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008) (factors for implied waiver of arbitration and requirement to show prejudice)
G.T. Leach Builders, LLC v. Sapphire V.P., 458 S.W.3d 502 (Tex. 2015) (arbitration rights may be waived expressly or impliedly; framework for waiver analysis)
Royston, Rayzor, Vickery & Williams, LLP v. Lopez, 467 S.W.3d 494 (Tex. 2015) (party asserting waiver bears the burden of proof)
In re Rubiola, 334 S.W.3d 220 (Tex. 2011) (party seeking arbitration must show a valid agreement and that claims fall within its scope)
J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003) (apply ordinary contract principles to arbitration agreements)
Adams v. StaxxRing, Inc., 344 S.W.3d 641 (Tex. App.—Dallas 2011) (examples of how discovery and litigation conduct factor into waiver/prejudice analysis)
Pounds v. Rohe, 592 S.W.3d 549 (Tex. App.—Houston [1st Dist.] 2019) (recent local precedent applying Perry Homes factors to waiver of arbitration)