Opinion issued February 24, 2026
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-24-00097-CV ——————————— TURNER SPECIALTY SERVICES, L.L.C., Appellant V. MICHAELA HORN, INDIVIDUALLY AND AS NEXT FRIEND OF G.H. AND M.M., MINORS, AND ATRELLE HORN, Appellees
On Appeal from the 55th District Court Harris County, Texas Trial Court Case No. 2020-42026
MEMORANDUM OPINION
Appellant, Turner Specialty Services, L.L.C. (“TSS”), appeals from the trial
court’s order denying its motion to compel arbitration in the wrongful death case
brought by appellees, Michaela Horn, individually and as next friend of G.H. and
M.M., minors, and Atrelle Horn (“Atrelle”) (collectively, the “Horns”), following the death of Justin Horn (“Justin”). In its sole issue, TSS contends that the trial
court abused its discretion in denying TSS’s motion to compel arbitration because
(1) the Horns’ claims are subject to the arbitration agreement between TSS and
Justin as their claims are derivative of Justin’s rights, and (2) TSS did not waive its
right to arbitrate.
We reverse and remand.
Background
TSS provides turnaround maintenance services at refineries and
petrochemical facilities in states along the Gulf of Mexico, including Alabama,
Mississippi, Louisiana, and Texas. Justin was a TSS employee.
At the time of hire, Justin and TSS entered into a Dispute Resolution
Agreement (the “DRA”). The DRA includes an arbitration agreement which
provides, in relevant part:
Both Employee and the Company agree to resolve any and all claims, disputes or controversies arising out of or relating to Employee’s employment with the Company exclusively by binding arbitration to be administered by the American Arbitration Association (the “AAA”) pursuant to its Employment Arbitration Rules and Mediation Procedures (the “Rules”).
The DRA expressly exempts from arbitration:
[C]laims or actions i.) seeking benefits pursuant to state workers’ compensation or unemployment compensation statutes or regulations, ii.) for employee benefits which are subject to mandatory litigation and/or dispute resolution provisions contained in the applicable employee benefit plan document, iii.) to compel arbitration or to 2 enforce an arbitrator’s award under this DRA, and/or iv.) by the Employee and/or the company for temporary and/or preliminary injunctive relief, or such other emergency injunctive and/or equitable relief until such time that an arbitrator may be appointed.
The DRA is governed by the Federal Arbitration Act (the “FAA”).1
TSS contracted with Hunt Refining Company (“Hunt”) to provide catalyst
work at Hunt’s refinery in Tuscaloosa, Alabama.2 On March 26, 2019, Justin died
while working as part of a catalyst crew on a turnaround project at Hunt’s Alabama
refinery.
A. Underlying Proceedings
On July 15, 2020, the Horns sued TSS, Hunt, and Edelhoff Technologies
U.S.A., LLC (“Edelhoff”), asserting causes of action for negligence and gross
negligence.3 The Horns later amended their petition to add TSS’s parent
corporation, Turner Industries Group, L.L.C. (“TIG”), and Total Safety, and it
joined Justin’s mother, Atrelle, as a plaintiff.
On September 4, 2020, TSS filed a special appearance challenging the trial
court’s personal jurisdiction over it and seeking dismissal of the Horns’ claims.
Hunt and TIG also filed special appearances. The parties extensively briefed the
1 See 9 U.S.C. §§ 1–16. 2 Catalyst work involves working in enclosed spaces, such as large tanks and reactors, in an inert atmosphere lacking oxygen. 3 Edelhoff and Hunt are not parties to this appeal.
3 issues related to the special appearances, and TSS participated in jurisdictional
discovery.4
Following a hearing, the trial court denied TSS’s special appearance on
December 29, 2021.5 TSS subsequently filed an interlocutory appeal.
TSS then filed an emergency motion to stay all discovery and pretrial
proceedings pending resolution of its appeal. The Horns responded to TSS’s
motion, arguing that a stay was unwarranted. This Court denied TSS’s emergency
motion to stay.
While its interlocutory appeal was pending, TSS engaged in the following
merits discovery:
• Served its initial disclosures;
• Responded to the Horns’ requests for production, requests for admission, and interrogatories;
• Responded to co-defendant Edelhoff’s requests for production and interrogatories;
• Propounded its request for disclosures on the Horns;
• Designated its experts;
4 The jurisdictional discovery consisted of responding to the Horns’ discovery requests, including two sets of interrogatories and requests for admission, producing documents related to TSS training records, participating in depositions of TSS and TIG employees, and participating in the deposition of a Hunt employee. 5 In the same order, the trial court granted TIG’s special appearance and denied Hunt’s special appearance.
4 • Participated in a joint inspection of Hunt’s refinery; and
• Participated in the deposition of a Total Safety employee.
On July 15, 2022, TSS filed an answer to the Horns’ third amended
petition—the live pleading—subject to its special appearance. Among its
affirmative defenses, TSS asserted that the Horns’ lawsuit was contrary to the
DRA’s arbitration agreement entered into by Justin and TSS, and the Horns should
be compelled to arbitrate their claims against TSS.
On November 3, 2022, this Court affirmed the trial court’s order denying
TSS’s special appearance.6 TSS filed a petition for review in the Texas Supreme
Court on February 21, 2023. The Texas Supreme Court denied TSS’s petition on
September 1, 2023 and denied its motion for rehearing on November 10, 2023.
B. Motion to Compel Arbitration
TSS moved to compel arbitration and stay the trial court’s proceedings on
November 15, 2023. It asserted that it was a subscriber to worker’s compensation
insurance and the Horns received workers’ compensation benefits as a result of
Justin’s death. TSS further asserted that the Horns’ remedy against TSS was
6 See Turner Specialty Servs., LLC v. Horn, No. 01-22-00031-CV, 2022 WL 16640624, at *1 (Tex. App.—Houston [1st Dist.] Nov. 3, 2022, pet. denied) (mem. op.).
5 therefore restricted to the recovery of punitive damages which required the Horns
to establish that TSS was grossly negligent.
TSS further asserted that Justin and TSS had entered into a valid arbitration
agreement and the Horns’ gross negligence claim against TSS fell under the
arbitration agreement. It asserted that the Horns’ claim is provided for by Article
XVI, Section 26 of the Texas Constitution and is asserted through the Texas
Wrongful Death Act (the “WDA”), not separately from it. According to TSS,
because the Horns’ claim is a tort claim and not one for worker’s compensation
benefits, it is subject to the arbitration agreement.
Additionally, TSS argued that it did not waive its right to enforce the
arbitration agreement because it had not substantially invoked the judicial process.
In particular, TSS pointed out that it had not sent any written discovery and had
only responded to written discovery served on it, and it did not seek or notice any
depositions but instead had provided several witnesses for deposition upon
counsel’s request and the subject matter of those depositions was limited to
jurisdictional questions. Although TSS attended a site inspection at the Hunt
refinery, it did not initiate it. TSS asserted that it did not file any motions seeking a
ruling on any issue other than personal jurisdiction. Finally, it attended the
deposition of a Total Safety employee noticed by the Horns.
6 In their response to TSS’s motion to compel, the Horns did not dispute that
Justin entered into the DRA with TSS or that the DRA’s arbitration agreement
would apply to their claims if they were bound by the DRA. Rather, they asserted
that there were two grounds barring arbitration of the case. First, they argued that
they were not bound by the arbitration agreement entered into by Justin and TSS
because the Texas Constitution empowers a wrongful death beneficiary to sue a
decedent’s employer for exemplary damages in cases of gross negligence that
resulted in the death of the employee. They asserted that their constitutional claim
was an independent cause of action and not derivative of the WDA and, thus, the
arbitration agreement was not binding on them.
Second, they asserted that even if there were a binding arbitration
agreement, TSS had waived its right to enforce that agreement. As an initial
matter, the Horns argued that under the recent United States Supreme Court
decision in Morgan v. Sundance, Inc., 596 U.S. 411 (2022), the only requirement
to establish waiver is a showing that the party seeking to compel arbitration
engaged in conduct that was inconsistent with invoking a right to arbitration, and
the prejudice element had been removed. The Horns argued that TSS had acted
inconsistently with a right to arbitrate by (1) not raising the issue of arbitration
until after its special appearance was denied, (2) both responding to merits
discovery that had been propounded on it and propounding merits discovery on
7 other parties, (3) designating its experts, (4) participating in a joint inspection of
the Hunt refinery, and (5) participating in the deposition of a Total Supply
employee and fact witness. The Horns argued that even under the traditional test
for waiver, TSS waived its right to compel arbitration because it had substantially
invoked the judicial process and it had prejudiced the Horns because the protracted
appellate process related to TSS’s special appearance required time, labor, and
expense by the Horns’ counsel as well as delayed the full development of the
merits of the case for three years.
In its reply brief, TSS reiterated that the Horns’ gross negligence claim
seeking punitive damages was derivative of a claim under the WDA and, thus, they
were bound by the arbitration agreement, and TSS did not waive its right to
arbitrate by substantially invoking the judicial process.
Following a hearing, the trial court denied TSS’s motion to compel
arbitration on January 26, 2024. This interlocutory appeal followed.
Standard of Review
We review an order denying a motion to compel arbitration for abuse of
discretion. Henry v. Cash Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018). A trial court
abuses its discretion if it acts in an arbitrary or unreasonable manner or acts
without reference to any guiding rules or principles. Cire v. Cummings, 134
S.W.3d 835, 838–39 (Tex. 2004). “We defer to the trial court’s factual
8 determinations if they are supported by evidence but review its legal
determinations de novo.” Henry, 551 S.W.3d at 115.
Discussion
In its sole issue, TSS asserts that the trial court abused its discretion by
denying its motion to compel arbitration because it established the existence of a
valid arbitration agreement and the agreement bound the Horns as their claims, like
all wrongful death claims, are derivative of the decedent’s rights. Further, it
asserts that it did not waive its right to arbitration because it did not substantially
invoke the judicial process.
The Horns respond that, as non-signatories to the DRA, TSS can only
compel arbitration against them if their gross negligence claims are derivative of
Justin’s rights. They assert that their gross negligence claims are independent and
non-derivative because they arise under either Article 16, Section 26 of the Texas
Constitution, or the Texas Workers’ Compensation Act (the “TWCA”), or both,
and therefore TSS cannot compel arbitration of their claims.7 Alternatively, they
argue that TSS waived its right to compel arbitration by its litigation conduct.
7 TSS argues that the Horns’ assertion that they are suing exclusively under Article XVI, Section 26 of the Texas Constitution and Section 408.001(b) of the TWCA is incorrect because it contradicts the allegations in their third amended petition that they are suing TSS under the WDA. We note that although they asserted a wrongful death claim under the WDA, the Horns also pleaded that TSS was “grossly negligent and should be subjected to exemplary damages pursuant to § 408.0001(b) of the Texas Labor Code and other applicable law.”
9 A. Governing Law
“At common law there was no recognized cause of action for the wrongful
death of another person.” In re Labatt Food Serv., L.P., 279 S.W.3d 640, 644
(Tex. 2009). “The Legislature enacted the Wrongful Death Act in order to create a
cause of action to allow a deceased tort victim’s surviving parents, children, and
spouse to recover damages for their losses from the victim’s death.” Id.; see also
TEX. CIV. PRAC. & REM. CODE ANN. §§ 71.002–.004.
Under the WDA, “[a]n action for actual damages arising from an injury that
causes an individual’s death may be brought if liability exists under this section.”
TEX. CIV. PRAC. & REM. CODE ANN. § 71.002. Wrongful death beneficiaries may
pursue a cause of action “only if the individual injured would have been entitled to
bring an action for the injury if the individual had lived.” Id. § 71.003(a). Stated
differently, “statutory wrongful death beneficiaries’ claims place them in the exact
‘legal shoes’ of the decedent, and they are subject to the same defenses to which
the decedent’s claims would have been subject.” In re Labatt, 279 S.W.3d at 644
(internal quotations omitted). “[The Texas Supreme Court has] consistently held
A petition satisfies Texas’s fair notice pleading standard so long as a party can ascertain from the pleading the nature, basic issues, and type of evidence that might be relevant to the controversy. See TEX. R. CIV. P. 45; In re YRC Inc., 646 S.W.3d 805, 809–10 (Tex. 2022). Further, when, as here, a party fails to specially except, we construe the petition liberally in favor of the pleader. See Brumley v. McDuff, 616 S.W.3d 826, 831 (Tex. 2021). The Horns provided fair and adequate notice to TSS that they were pleading their gross negligence claim under the TWCA and the Texas Constitution. See id.
10 that the right of statutory beneficiaries to maintain a wrongful death action is
entirely derivative of the decedent’s right to have sued for his own injuries
immediately prior to his death.” Id.
In light of the derivative nature of claims brought under the WDA, “a
decedent’s pre-death contract may limit or totally bar a subsequent action by his
wrongful death beneficiaries.” Id. Contractual releases signed by the decedent
apply to WDA claims. Id. at 645. Similarly, arbitration agreements signed by the
decedent apply to WDA claims. Id. at 645–47. Thus, when a decedent signs an
arbitration agreement, non-signatories who bring WDA claims “must arbitrate as
their right to maintain a wrongful death action is entirely derivative of [the
decedent’s] rights.” Id. at 649.
Article XVI, Section 26 of the Texas Constitution provides: “Every person,
corporation, or company, that may commit a homicide, through wilful act, or
omission, or gross neglect, shall be responsible, in exemplary damages, to the
surviving husband, widow, heirs of his or her body . . . .” TEX. CONST. art. XVI, §
26.
Section 408.001 of the TWCA provides:
(a) Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.
11 (b) This section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer’s gross negligence.
TEX. CIV. PRAC. & REM. CODE ANN. § 408.001.
B. Wrongful Death Cause of Action
The Horns acknowledge the derivative nature of claims brought under the
WDA. They argue, however, that separate and apart from the WDA, there is an
independent, non-derivative cause of action for gross negligence for wrongful
death under Article XVI, Section 26 of the Texas Constitution. Alternatively, they
assert that Section 408.001(b) of the TWCA—either independently or in
conjunction with Article XVI, Section 26—provides an independent cause of
action for gross negligence related to wrongful death.
In support of their position, the Horns cite several Texas Supreme Court
decisions for the principle that, when interpreting the Texas Constitution, courts
must “rely heavily on its literal text and must give effect to its plain language.”
LaSalle Bank Nat. Ass’n v. White, 246 S.W.3d 616, 619 (Tex. 2007); see
Eddington v. Dall. Police & Fire Pension Sys., 589 S.W.3d 799, 805 (Tex. 2019);
Garofolo v. Ocwen Loan Serv., L.L.C., 497 S.W.3d 474, 477 (Tex. 2016). They
reason that, under this literal text approach and consistent with contemporaneous
dictionaries, Article 16, Section 26’s language stating that anyone whose gross
negligence results in another’s death “shall be responsible” in exemplary damages
12 to the survivors means that there is an independent cause of action for gross
negligence that results in wrongful death. We disagree.
In Travelers Indemnity Co. of Illinois v. Fuller, the Texas Supreme Court
considered whether Article 16, Section 26 of the Texas Constitution creates an
independent cause of action for punitive damages where no cause of action for
compensatory damages otherwise exists. 892 S.W.2d 848, 849 (Tex. 1995).
There, the plaintiff sued Travelers Indemnity Company of Illinois and Travelers
Insurance Company (collectively, “Travelers”), alleging that Travelers’ gross
negligence proximately caused the death of her father. See id. Travelers moved
for summary judgment arguing that it was immune from such suits under the
TWCA. See id. The plaintiff asserted that the Texas Constitution, on its face,
created a cause of action for punitive damages which did not depend upon her right
to compensatory relief. See id. at 850.
The Court concluded that when the language of the Constitution was read in
conjunction with the legal history existing at the time of its adoption, it was clear
that its purpose was to resolve ambiguities existing in the statutory and common
law of punitive damages, not to extend a right to punish which exceeded the right
to compensatory relief. See id. at 850–52 (“Thus, the reason for adoption of the
constitutional provision was to allow for exemplary damages under the Wrongful
Death Act because of an early interpretation that such damages were not authorized
13 by the Act. It did not abrogate the common law requirement of actual damages
and extend the remedy to those with no cause of action under the Act.” (internal
citations omitted)). The Court held that the TWCA barred the plaintiff’s cause of
action for compensatory damages and Article 16, Section 26 of the Texas
Constitution guarantees the remedy of punitive damages only when a wrongful
death beneficiary otherwise possesses a cause of action for compensatory relief.
See id. at 853. It reversed the court of appeals’ judgment and rendered judgment
that the plaintiff take nothing on her claims. See id.
Applying Fuller, at least two other courts have reached the same conclusion.
In Ross v. Union Carbide Corp., an employee’s survivors sued his employer,
Union Carbide Corporation, for exemplary damages following the employee’s
death from an asbestos-related disease. 296 S.W.3d 206, 211 (Tex. App.—
Houston [14th Dist.] 2009, pet. denied). Union Carbide successfully moved for
summary judgment on the ground that the settlement and release agreement
previously executed by the employee and his wife barred the survivors’ claims.
See id.
On appeal, the survivors denied that their claims were brought pursuant to
the WDA. See id. Instead, they asserted that Article XVI, Section 26 of the Texas
Constitution and Section 408.001 of the TWCA, alone or in combination, created
14 an exemplary damages cause of action that was independent of the WDA and non-
derivative of the decedent’s rights. See id. at 212.
The en banc court noted that, with respect to Article XVI, Section 26, the
Fuller court had explained that the section’s purpose was to allow for exemplary
damages under the WDA because of an earlier interpretation that such damages
were not authorized by the Act. See id. at 213 (“Thus, Fuller makes clear that a
claim for exemplary damages under [A]rticle XVI, [S]ection 26 is asserted through
the Wrongful Death Act, not separately from it.”). The Ross court similarly
rejected the survivors’ argument that Section 408.001 of the TWCA created an
independent, non-derivative cause of action; instead, it identified an exception to
the TWCA’s exclusivity provision. See id. at 214. The court clarified that “section
408.001(a) explains what the Workers’ Compensation Act does—i.e., it provides
an exclusive remedy for covered employees and their beneficiaries, substituting the
right to statutory benefits for the right to recover actual damages from the worker’s
employer—and section 408.001(b) explains what the Act does not do—i.e., it does
not prohibit certain of a covered employee’s survivors from recovering exemplary
damages from an employer who caused the employee’s death through its
intentional act or omission or its gross negligence.” Id.8
8 In holding that neither Article XVI, Section 26 of the Texas Constitution nor Section 408.001(b) of the TWCA created a non-derivative cause of action for exemplary damages independent of the WDA, the Ross court overruled its prior 15 In Rush Truck Centers of Texas, L.P. v. Mendoza, a surviving spouse
initiated a gross negligence and workers’ compensation lawsuit against her late
husband’s employer following his work-related death. 676 S.W.3d 821, 826 (Tex.
App.—El Paso 2023, pet. denied). The employer moved to stay proceedings and
sought to compel the arbitration agreement electronically signed by the decedent.
See id. The trial court denied the employer’s motion, and the employer appealed.
On appeal, the surviving spouse asserted that her claims were independent,
non-derivative causes of action under Article XVI, Section 26 of the Texas
Constitution and Section 408.001 of the TWCA and fell outside the scope of the
arbitration agreement. See id. at 830. After considering “the historical setting in
which the provisions were enacted, along with the purpose of the TWCA and its
statutory structure, and the plain language of § 408.001(b),” the Rush court
concluded that “neither Article 16, § 26 of the Texas Constitution, nor §
408.001(b) of the Texas Labor Code, alone or in conjunction, create an
independent cause of action for the recovery of exemplary damages for an
employer’s gross negligence.” Id. at 835.
decision in Perez v. Todd Shipyards Corp., 999 S.W.2d 31 (Tex. App.—Houston [14th Dist.] 1999), pet. denied, 35 S.W.3d 598 (2000). See Ross v. Union Carbide Corp., 296 S.W.3d 206, 215 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (“In sum, Perez presents an unsupported and unsustainable departure from precedent.”).
16 In their briefing, the Horns assert that this appeal is controlled by this
Court’s en banc decision in Smith v. Atlantic Richfield Co., 927 S.W.2d 85 (Tex.
App.—Houston [1st Dist.] 1996, writ denied). They assert that, under Smith, their
gross negligence claims against TSS, whether arising under the Texas Constitution
or the TWCA, or both, are independent and not derivative WDA claims and, thus,
they are not bound to arbitrate their claims.
In Smith, the family members of a deceased worker sued to recover
exemplary damages from the worker’s employers alleging his death was caused by
the employers’ gross negligence. See id. at 86–87. The trial court granted the
employers’ motion for summary judgment and dismissed the family members’
claims. See id. at 87. On appeal, the family members argued that the trial court
erred in ruling that Texas law does not provide a cause of action for exemplary
damages against employers whose gross negligence causes an employee’s death.
See id. The employers argued that the worker could not have sued for his injuries
had he survived because his exclusive remedy was workers’ compensation
benefits, and therefore, his surviving family members also had no cause of action
because of the limitations of the WDA. See id.
The Smith court stated that although the exclusive remedy portion of the
TWCA barred a wrongful death action by the survivors, it did not bar an action for
exemplary damages based on the employer’s gross negligence or intentional tort.
17 See id. It noted that the family members argued that their cause of action was
permitted by Section 408.001(b) of the Texas Labor Code. See id. The employers
conceded that this provision would have saved a state constitutional cause of action
but argued that Fuller “explicitly extinguished” any independent cause of action
under Article XVI, Section 26 of the Texas Constitution. Id. at 87–88. The Smith
court disagreed, noting that the plaintiff in Fuller was attempting to recover
exemplary damages from an insurance company, not an employer, but the TWCA
specifically provides for a cause of action against an employer whose gross
negligence causes the employee’s death. See id. at 88.
We disagree with the Horns’ position that, under Smith, their gross
negligence claims are independent, non-derivative claims under the Texas
Constitution. Nothing in the Smith opinion indicates that the family members in
that case pursued their claims under the Texas Constitution. To the contrary, the
Smith court noted that the family members’ position was that their claims were
permitted by Section 408.001(b) of the Texas Labor Code.9 See id. at 87. The
Texas Supreme Court held in Fuller that the Texas Constitution does not create an
independent, non-derivative cause of action for wrongful death arising from gross
9 Additionally, neither of the two cases cited by the Smith court in its discussion and relied on by the family members—Texaco, Inc. v. Sanderson, 898 S.W.2d 813 (Tex. 1995) and Universal Services Co. v. Ung, 904 S.W.2d 638 (Tex. 1995)— makes any reference to the Texas Constitution. See Sanderson, 898 S.W.2d at 814; Ung, 904 S.W.2d at 639–40.
18 negligence. See Fuller, 892 S.W.2d at 853. Rather, a claim for exemplary
damages under Article XVI, Section 26 is asserted through the WDA, not
separately from it. See id. at 851–52 (“[T]he reason for adoption of the
constitutional provision was to allow for exemplary damages under the Wrongful
Death Act. It did not abrogate the common law requirement of actual damages and
extend the remedy to those with no cause of action under the Act.”).
We find the Horns’ claim—that Fuller’s statements about whether there is
an independent cause of action under Article XVI, Section 26 are dicta—
unpersuasive.10 Indeed, the opinion in Fuller begins by stating: “In this case we
must decide whether Article 16, Section 26 of the Texas Constitution creates an
independent cause of action for punitive damages where no cause of action for
compensatory damages otherwise exists.” Id. at 852.
The Horns’ assertion that this Court’s opinion in Smith stands for the
proposition that there is an independent, non-derivative cause of action for gross
10 The Horns suggest that we should view Fuller’s reasoning as “suspect” because it focused on the “manifest purpose of the language of [the] constitutional provision” rather than being “faithful to the literal text approach that the Texas Supreme Court has recently emphasized.” We decline the invitation to do so. See City of New Braunfels v. Stop The Ordinances Please, 520 S.W.3d 208, 224 (Tex. App.—Austin 2017, pet. denied) (“[A]s an intermediate appellate court, we are not free to mold Texas law as we see fit but must instead follow the precedents of the Texas Supreme Court unless and until the high court overrules them or the Texas Legislature supersedes them by statute.”); see also Lubbock Cty. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (“It is not the function of a court of appeals to abrogate or modify established precedent.”).
19 negligence for wrongful death under Section 408.001(b) of the TWCA is equally
unavailing. In Smith, the court considered whether the family members’ claims
were still viable because the decedent himself could not have sued for injuries had
he survived due to the exclusive remedy for workers’ compensation benefits. Id. at
87. The Horns are correct that the court in Smith held that the TWCA does not
“bar an action for exemplary damages based on the employer’s gross negligence or
intentional tort.” Id. It did not, however, hold that there is an independent, non-
derivative wrongful death cause of action for exemplary damages. Rather, it
applied the language of Section 408.001(b) which states that the exclusive remedy
does not prohibit a surviving spouse or heirs from bringing a wrongful death suit
for exemplary damages against the decedent’s employer. See id. at 88.
Neither Article XVI, Section 26 of the Texas Constitution nor Section
408.001(b) of the TWCA, alone or in conjunction with one another, creates a non-
derivative cause of action that may be asserted independently from the WDA.
Because claims under the WDA are derivative of the decedent’s claim, and Justin
agreed to arbitrate all disputes (with exceptions not pertinent here), we hold that
the Horns’ gross negligence claims are subject to the DRA’s arbitration agreement.
20 C. Waiver
TSS next argues that it did not waive its right to arbitrate because it did not
substantially invoke the judicial process. In response, the Horns assert that TSS
impliedly waived its right to compel arbitration by its litigation conduct.
1. Applicable Law
A party who opposes the enforcement of a valid arbitration agreement11
based on the defense of waiver bears the burden of proving the defense. Royston,
Rayzor, Vickery & Williams, LLP v. Lopez, 467 S.W.3d 494, 499–500 (Tex. 2015);
Pounds v. Rohe, 592 S.W.3d 549, 554 (Tex. App.—Houston [1st Dist.] 2019, no
pet.). “Due to the strong presumption against waiver of arbitration, [the] hurdle [to
establish waiver] is a high one.” Perry Homes v. Cull, 258 S.W.3d 580, 590 (Tex.
2008). Waiver—the intentional relinquishment of a known right—can occur either
expressly, through a clear repudiation of the right, or impliedly, through conduct
inconsistent with a claim to the right. G.T. Leach Builders, LLC v. Sapphire V.P.,
LP, 458 S.W.3d 502, 511 (Tex. 2015). Courts can imply a waiver of the right to
arbitrate from a party’s conduct, but “that conduct must be unequivocal.” Perry
Homes, 258 S.W.3d at 593. A party asserting implied waiver as an affirmative
11 The Horns do not challenge on appeal the existence of a valid arbitration agreement and other than asserting they are not bound by the DRA because they have an independent, non-derivative claim for gross negligence—an argument we have already rejected—they do not argue that their claims fall outside the scope of the arbitration agreement.
21 defense to arbitration bears the burden to prove (1) the party seeking arbitration
substantially invoked the judicial process in a manner inconsistent with the right to
compel arbitration, and (2) this inconsistent conduct caused the nonmoving party
to suffer detriment or prejudice.12 G.T. Leach, 458 S.W.3d at 511–12 (citing Perry
Homes, 258 S.W.3d at 593–94). “Merely taking part in litigation” is insufficient to
constitute waiver by litigation conduct. Id. at 512 (internal quotations omitted).
However, “[s]ilence or inaction, for so long a period as to show an intention to
12 The Horns assert that the United States Supreme’s Court’s decision in Morgan v. Sundance, Inc., 596 U.S. 411 (2022) changed the waiver analysis under the FAA. In Morgan, the Supreme Court rejected any requirement of proof of prejudice as an “arbitration-specific” federal procedural rule. See id. at 416–19. Neither the Texas Supreme Court nor this Court have addressed whether Morgan abrogates the requirement in Texas jurisprudence that a party seeking to establish waiver of the right to arbitrate must establish both (1) substantial invocation of the judicial process and (2) prejudice as a result of the opposing party’s inconsistent conduct. Humphries Constr. Corp. v. Highland Vill. Ltd. P’ship, No. 01-23-00651-CV, --- S.W.3d ---, 2025 WL 2471797, at *12 (Tex. App.—Houston [1st Dist.] Aug. 28, 2025, no pet.); see also Preferred Pools of Houston, Inc. v. Gossai, No. 14-23- 00635-CV, 2024 WL 4457032, at *7 (Tex. App.—Houston [14th Dist.] Oct. 10, 2024, no pet.) (mem. op.) (“Whether [Morgan’s holding] would govern in state court as a matter of procedure is unsettled and a matter for the Texas Supreme Court to determine.”); Momentum Project Controls, LLC v. Booflies to Beefras LLC, No. 14-22-00713-CV, 2023 WL 4196584, at *5 n.5 (Tex. App.—Houston [14th Dist.] June 27, 2023, pet. denied) (mem. op.) (describing issue as “unsettled” question of law); but see Dall. Excavation Sys., Inc. v. Orellana, 697 S.W.3d 702, 709 (Tex. App.—Dallas 2024, no pet.) (holding, pursuant to Morgan, “a showing of prejudice is no longer required in order to establish waiver, at least in cases involving the FAA”). Because we hold that the Horns did not establish that TSS substantially invoked the judicial process, we need not address whether evidence of prejudice is required under Texas law post-Morgan. See Henry v. Cash Biz, LP, 551 S.W.3d 111, 118 (Tex. 2018) (concluding opponent did not establish that proponent substantially invoked judicial process under first prong and thus declining to reach prejudice under second prong).
22 yield the known right, is . . . enough to prove waiver.” Tenneco Inc. v. Enter.
Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996).
Whether a party waives its right to arbitration by substantially invoking the
judicial process depends on the totality of the circumstances. See G.T. Leach, 458
S.W.3d at 512; Perry Homes, 258 S.W.3d at 591. We decide the issue on a case-
by-case basis taking into consideration a multitude of non-exclusive factors,
including:
(1) the movant’s delay in moving to compel arbitration; (2) the reasons for the movant’s delay; (3) whether and when the movant learned of the arbitration agreement; (4) how much discovery the movant conducted before moving to compel arbitration, and whether that discovery related to the merits; (5) whether the movant requested disposition of any claims on the merits; (6) whether the movant asserted affirmative claims for relief in court; (7) the extent of the movant’s engagement in pretrial matters related to the merits (as opposed to matters related to arbitrability or jurisdiction); (8) the amount of time and expense the parties committed to the litigation; (9) whether the discovery conducted would be unavailable or useful in arbitration; (10) whether activity in court would be duplicated in arbitration; and (11) when the case is set to be tried.
G.T. Leach, 458 S.W.3d at 512 (citing Perry Homes, 258 S.W.3d at 591–92). In
general, no single factor is dispositive. RSL Funding, LLC v. Pippins, 499 S.W.3d
423, 430 (Tex. 2016). Nor must all or most of these factors be present to support
waiver. See Perry Homes, 258 S.W.3d at 591. Courts consider the specifics of
each case. Henry, 551 S.W.3d at 116.
23 2. Substantial Invocation
The Horns argue that TSS waived its right to arbitrate by substantially
invoking the judicial process in a manner inconsistent with the right to compel
arbitration by (1) delaying moving for arbitration for more than three years, (2)
responding to merits discovery and propounding merits discovery on other
parties,13 (3) designating its experts, (4) participating in a joint inspection of the
Hunt refinery, and (5) participating in the deposition of a Total Supply employee
and fact witness.
a. Delay
The Horns sued TSS on July 15, 2020. TSS filed its motion to compel
arbitration and stay proceedings on November 15, 2023—more than three years
after suit was filed.
The Horns argue that despite knowing about the DRA all along, as
evidenced by the fact that they produced it during discovery, TSS did not mention
the arbitration agreement for two years and delayed moving for arbitration for
more than three years. They assert that when TSS applied for an emergency stay
13 The Horns point out that TSS propounded requests for disclosure on the Horns. At the time, the Texas Rules of Civil Procedure provided that “a party may request disclosure.” In re City of Dickinson, 568 S.W.3d 642, 646 (Tex. 2019) (orig. proceeding) (quoting former Texas Rule of Civil Procedure 194.2). The Horns assert that although Rule 194 has subsequently been amended to require automatic disclosures without request, that change only applies to “cases filed on or after January 1, 2021.” This case was filed on July 15, 2020, before the amendment.
24 of discovery after its special appearance was denied, it did not cite the arbitration
agreement as the reason to stay discovery. Instead, TSS first mentioned arbitration
when it filed its answer subject to its special appearance two years after the Horns
filed their lawsuit and yet still did not move to compel arbitration at that time. The
Horns emphasize that TSS could have moved to compel arbitration subject to its
special appearance as early as September 4, 2020—the day it filed its special
appearance—but it chose not to do so. They further point to the fact that TSS filed
a petition for review of this Court’s ruling, affirming the denial of its special
appearance, in the Texas Supreme Court and, after its petition was denied, moved
for rehearing of the decision. It did this, the Horns note, rather than move to
compel arbitration despite being on notice that it might not be afforded any further
relief because review by the Texas Supreme Court is discretionary.
“[D]elay alone generally does not establish waiver.” In re Vesta Ins. Grp.,
Inc., 192 S.W.3d 759, 763 (Tex. 2006) (orig. proceeding). Although the case was
on file for more than three years before TSS moved to compel arbitration, the
reason for most of the delay related to TSS’s special appearance. See 1776 Am.
Props. VI, LLC v. First Chapel Dev., LLC, No. 14-21-00734-CV, 2023 WL
3194401, at *4 (Tex. App.—Houston [14th Dist.] May 2, 2023, no pet.) (mem. op.)
(“Thus, although the case was on file for almost three years before the motion to
compel was filed, most of that time was occupied by proceedings and delays
25 related to Fisher’s special appearance.”). A jurisdictional motion, such as a special
appearance, which does not address the merits and is subject to the due-order-of
pleading rule, generally will not support waiver of a right to arbitrate. See
Richmont Holdings, Inc. v. Superior Recharge Sys., L.L.C., 455 S.W.3d 573, 576
(Tex. 2014) (finding defendant’s filing of motion to transfer venue did not support
waiver because it did not address merits of case and objections to improper venue
were subject to due-order-of-pleading rule). A defendant who files a special
appearance is seeking to avoid the judicial process rather than invoke it by
challenging the jurisdiction of the court.
b. Participation in Merits Discovery
The Horns also argue that TSS acted inconsistently with its claimed right to
arbitrate because it actively participated in merits discovery and benefitted greatly
from that discovery.14
A party can substantially invoke the judicial process when it participates in
full discovery, files motions going to the merits, and waits until the eve of trial to
seek arbitration. In re Fleetwood Homes of Tex., L.P., 257 S.W.3d 692, 694–95
14 The Horns acknowledge that jurisdictional discovery, such as what occurred during the special appearance briefing, does not go to the merits of the case. See Perry Homes v. Cull, 258 S.W.3d 580, 591–92 (Tex. 2008) (considering how much pretrial activity and discovery related to merits of dispute rather than arbitrability or jurisdiction); Garg v. Pham, 485 S.W.3d 91, 110 n.20 (Tex. App.— Houston [14th Dist.] 2015, no pet.) (noting venue and jurisdictional motions do not constitute substantial invocation of judicial process, as could waive right to arbitration, because they do not relate to merits of case).
26 (Tex. 2008). The Horns assert that while TSS’s interlocutory appeal was pending,
it participated in merit discovery by serving its initial disclosures; responding to
the Horns’ requests for production, requests for admission, and interrogatories;
responding to co-defendant Edelhoff’s requests for production and interrogatories;
propounding its request for disclosures on the Horns; designating its experts;
participating in a joint inspection of Hunt’s refinery; and participating in the
deposition of a Total Safety employee.
The record reflects that TSS engaged in limited discovery in the trial court.
After the trial court denied its motion to stay the proceedings pending its
interlocutory appeal, TSS was required to serve its initial disclosures, respond to
the written discovery served upon it, and designate its expert witnesses in
compliance with the Texas Rules of Civil Procedure. The only discovery it
propounded was a request for disclosure on the Horns; it served no interrogatories,
request for production, or request for admission. TSS attended a single site
inspection at the Hunt refinery where the accident occurred. The inspection was at
the Horns’ request, TSS did not initiate it. TSS attended a deposition of a Total
Safety employee noticed by the Horns; TSS did not notice any depositions. This
conduct falls far short of the amount and scope of discovery in other cases in which
courts have held that a party waived its right to arbitrate by substantially invoking
the judicial process. See, e.g., Courtright v. Allied Custom Homes, Inc., 647
27 S.W.3d 504, 518–19 (Tex. App.—Houston [1st Dist.] 2022, pet. denied) (affirming
denial of motion to compel because party waived its right to arbitrate by
substantially invoking judicial process and noting movants served forty-seven
interrogatories, 135 requests for production, seven deposition notices, and two
subpoenas to non-parties, plus movants “conducted many hours of depositions and
generated hundreds of pages of testimony”); Pro. Advantage Software Sols., Inc. v.
W. Gulf Mar. Ass’n, No. 01-15-01006-CV, 2016 WL 2586690, at *4 (Tex. App.—
Houston [1st Dist.] May 5, 2016, no pet.) (mem. op.) (affirming denial of motion
to compel because party waived its right to arbitrate by substantially invoking
judicial process and considering “[s]ignificant discovery” conducted “by both
parties,” consisting of tens of thousands of documents produced and depositions of
two witnesses, and request by movant for additional time to conduct further
depositions of experts before moving to compel arbitration).
Subject to its special appearance, TSS filed its answer and affirmative
defenses, which included the defense that the Horns’ claims were subject to the
arbitration agreement. Other than its special appearance, TSS did not file any
motions seeking a ruling on any issue on the merits, request disposition of any
claims on the merits, or assert affirmative claims for relief in the trial court.
Based on the totality of circumstances and taking the above factors into
account, we conclude that TSS did not substantially invoke the judicial process
28 before moving to compel arbitration against the Horns.15 See 1776 Am. Props. VI,
2023 WL 3194401, at *4 (concluding movant did not waive arbitration rights
despite three-year delay in which one party filed special appearance, another party
filed third-party petition and motion for default judgment, all parties attended
court-ordered mediation, one party settled, and another party participated in
deposition); Garg v. Pham, 485 S.W.3d 91, 110 (Tex. App.—Houston [14th Dist.]
2015, no pet.) (holding responding to discovery, propounding limited written
discovery, participating in motion for continuance, and special appearance did not
waive right to arbitration). Thus, we hold that the trial court erred in denying
TSS’s motion to compel arbitration.
We sustain TSS’s sole issue.
Conclusion
We reverse the trial court’s order denying TSS’s motion to compel
arbitration and remand to the trial court with instructions to grant TSS’s motion to
compel arbitration and for further proceedings consistent with this opinion.
Kristin M. Guiney Justice
15 In light of our conclusion that the Horns did not establish that TSS substantially invoked the judicial process under the first prong, we do not reach prejudice under the second prong. See TEX. R. APP. P. 47.1.
29 Panel consists of Justices Rivas-Molloy, Guiney, and Morgan.