Waive arbitration before vacating default judgment?

The third prong of the Craddock test for setting aside a default judgment – that the defendant “file the motion at a time when granting it will occasion no delay or otherwise work an injury to the plaintiff” – is commonly cited when awarding attorneys’ fees to the plaintiff. The plaintiff in In re: CGI Construction went a step further and also obtained a requirement that the defendant waive its contractual right to arbitrate. The Fifth Court conditionally granted mandamus relief, finding as a matter of law (in light of the strong policy favoring arbitration) that “the trial court may not condition the granting of a new trial and motion to set aside default judgment on waiver of contractual arbitration rights,” and that the plaintiff did not otherwise establish evidence of injury (a lost witness, etc.) if arbitration proceeded. No. 05-18-00320-CV (June 18, 2018) (mem. op.)