Read the following excerpt from a US court opinion:
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305 S.W.3d 141, 152 (Tex.App.-Houston [1st Dist.] 2009, pet. denied). In this case, appellant seeks to arbitrate a claim against appellees to collect its fees under the contingency fee agreement. In this context, for there to have been a waiver, appellant “must [have], at the very least, engage[d] in some overt act in court that evince[d] a desire to resolve the [same] arbitrable dispute through litigation rather than arbitration.” Haddock v. Quinn, 287 S.W.3d 158, 177 (Tex.App.-Fort Worth 2009, pet. denied). Thus, it is relevant that appellant previously litigated its claim to the same attorney’s fees under the same contract in the suit against Brown in Harris County. See In re Christus Spohn Health Sys. Corp., 231 S.W.3d 475, 481 (Tex.App.-Corpus Christi 2007, orig. proceeding) . Furthermore, we note that appellees contend —
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the current party was sufficiently identified with the parties to the prior litigation
B. holding res judicata did not bar current litigation when prior litigation between the parties involved one breach of obligation under a joint venture agreement and instant litigation was based upon a different cause of action from a subsequent interference with the same agreement
C. holding that a judgment as to the title in a prior litigation was not subject to collateral attack
D. holding hospitals prior litigation conduct in criminal case constituted waiver of right to arbitrate where prior litigation involved developing evidence as part of strategic plan for defense of civil suit for damages
E. holding that determination of the oklahoma and texas common boundary in a prior suit was conclusive in future litigation
Reply with [A, B, C, D, E] only.