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Baker v. Stevens5/31/2005
Rosenthal disagrees, arguing that the case is not moot because " he time for appeal of the . . . summary judgment has not run." Dr. Stevens and IHC initially argued that the appeal was not moot because they were entitled to enforce the arbitration agreement regardless of whether Dr. Rosenthal remained a party. Subsequently, however, Dr. Stevens and IHC settled with Christine, and she dismissed her claims against them. Accordingly, we restrict our discussion to Christine's claim against Dr. Rosenthal.
We have jurisdiction pursuant to Utah Code section 78-2-2(3)(j) (2002). We review the district court's denial of Dr. Rosenthal's motion to compel arbitration for correctness. Sosa v. Paulos, 924 P.2d 357, 360 (Utah 1996).
ANALYSIS
Dr. Rosenthal seeks to compel arbitration of Christine's wrongful death claim pursuant to his agreement with Gary. Christine seeks to avoid application of the agreement, arguing that the agreement is entirely invalid and, in any event, that it does not apply to her wrongful death claim. She also asserts that the summary judgment in Dr. Rosenthal's favor rendered this appeal moot. Although we conclude that the summary judgment entered in favor of Dr. Rosenthal does not render this appeal moot, we hold that Dr. Rosenthal's decision to seek summary judgment from the district court constituted a waiver of his right to arbitrate.
I. IS THIS APPEAL MOOT?
We first address whether Dr. Rosenthal's summary judgment has rendered this appeal moot. "An appeal is moot if during the pendency of the appeal circumstances change so that the controversy is eliminated, thereby rendering the relief requested impossible or of no legal effect." Richards v. Baum, 914 P.2d 719, 720 (Utah 1996) (internal quotations omitted). We do not address moot claims on appeal. See Black v. Allstate Ins. Co., 2004 UT 66, 29, 100 P.3d 1163.
We conclude that this appeal is not moot. This appeal raised the question of whether Dr. Rosenthal could compel arbitration of Christine's wrongful death claim; Dr. Rosenthal asserted that he could, while Christine asserted he could not. That issue still awaits decision. Because the time for appealing the summary judgment has yet to run, the judgment is not final. In the event that Christine is successful in challenging the summary judgment on appeal, Dr. Rosenthal will presumably still seek to compel arbitration. Accordingly, this appeal "has lost its ability to provide judicial relief to the litigants," Shipman v. Evans, 2004 UT 44, 37, 100 P.3d 1151, and is not, therefore, moot.
II. DOES DR. ROSENTHAL'S DECISION TO SEEK SUMMARY JUDGMENT IN THE DISTRICT COURT CONSTITUTE A WAIVER OF HIS CLAIMED RIGHT TO ARBITRATE?
Although Dr. Rosenthal's summary judgment has not rendered this appeal moot, we conclude that Dr. Rosenthal's decision to seek summary judgment in the district court constituted a waiver of his claimed right to arbitrate. Our holding in this regard requires us to affirm the district court's denial of Dr. Rosenthal's motion to compel arbitration, even though the district court has not passed on the waiver issue and the parties have not raised that argument either in the district court or before us on appeal. See Bailey v. Bayles, 2002 UT 58, 10, 52 P.3d 1158.
We have recognized that arbitration has much to recommend it, see Buckner v. Kennard, 2004 UT 78, 17, 99 P.3d 842, and have accordingly noted "a strong presumption against waiver of the right to arbitrate," Cent. Fla. Invs., Inc. v. Parkwest Assocs., 2002 UT 3, 24, 40 P.3d 599. Consequently, a "waiver of the right to arbitrate must be intentional" and may be inferred "only if the facts dem
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