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Buck v. Davis Restoration11/25/2003
trial, filing a motion for summary judgment, or utilizing judicial discovery procedures." [ Madison, supra at 588-589, quoting Hendrickson, supra at 299-300, quoting anno: Defendant's participation in action as waiver of right to arbitration of dispute involved therein , 98 ALR3d 767, § 2, pp. 771-772.]
B. Discussion
Here, the trial court correctly ruled that Buck failed to raise an issue of material fact to establish his claim that PDRI waived its right to arbitrate. The litigation initiated by D.E.L.T. was by the franchisee alone and did not include claims by or on behalf of PDRI. The documentary evidence clearly establishes that PDRI neither responded to nor participated in the D.E.L.T. litigation to any degree that would suggest a waiver of arbitration. Rather, PDRI initiated its arbitration remedies against Buck during the D.E.L.T. litigation and before the resolution of D.E.L.T.'s claims against Buck. While D.E.L.T. attorneys may have carbon copied PDRI on certain aspects of the D.E.L.T. litigation, this does not rise to the level of an activity by PDRI that is inconsistent with its right to arbitrate claims against Buck.
Buck asserts that the trial court judge in D.E.L.T. v Buck considered adding PDRI as a party to the litigation. However, the statements made at the disputed D.E.L.T. v Buck hearing relate to whether D.E.L.T. or Paul Davis Systems of Lansing, Michigan entered the agreements with Buck, not PDRI, a Florida corporation. Further, were we to read the transcript as a reference to PDRI, we do not interpret an assertion by D.E.L.T.'s attorney regarding an affiliation with PDRI as an action by PDRI to waive arbitration. We also do not deem PDRI's job offer to Buck as inconsistent with a right to arbitrate. While the offer would have necessarily negated Buck's continuing violation of the non-competition agreements with both D.E.L.T. and PDRI, the evidence shows that this was PDRI's attempt to avoid its own arbitration, not a tactic to control or dispose of the D.E.L.T. litigation.
The trial court did not err when it ruled that Buck failed to establish a triable issue of fact regarding PDRI's alleged waiver of arbitration. Buck simply did not meet his heavy burden of showing that PDRI acted in a manner inconsistent with its right to arbitrate. PDRI did not join in or control the D.E.L.T. litigation and, instead, filed a timely and independent arbitration action, consistent with its contractual rights.
Affirmed.
Donald S. Owens, E. Thomas Fitzgerald, Henry William Saad.
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