IN THE SUPREME COURT OF TEXAS

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No. 05-0882

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Perry Homes, A Joint Venture, Home Owners Multiple Equity, Inc.,

and Warranty Underwriters Insurance Company, Petitioners,

v.

Robert E. Cull and S. Jane Cull, Respondents

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On Petition for Review from the

Court of Appeals for the Second District of Texas

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Argued March 20, 2007

            Justice O’Neill, concurring.

            Most members of the Court agree that the Culls substantially invoked the litigation process before requesting arbitration; the point of disagreement is whether Perry Homes adequately proved it suffered prejudice as a result. I join the Court’s opinion, but write separately to note that I believe the proof required to demonstrate prejudice in any given case should be measured by the degree to which the litigation process has been invoked. In some circumstances, a party’s invocation of the judicial process may be so substantial that a court could presume the party resisting arbitration has been prejudiced and the right to arbitration has been waived. In my view, such a presumption may easily be drawn on this record.

                                                                        ___________________________________

                                                                        Harriet O’Neill

                                                                        Justice

OPINION DELIVERED: May 2, 2008