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Baker v. Stevens5/31/2005
onstrate that the party seeking to enforce arbitration intended to disregard its right to arbitrate." Id.
We have constructed a two-part test for determining whether a party has waived its right to arbitrate by participating in litigation of issues subject to arbitration. First, the party seeking arbitration must have "substantially participated in the underlying litigation to a point inconsistent with the intent to arbitrate." Cedar Surgery Ctr., L.L.C. v. Bonelli, 2004 UT 58, 14, 96 P.3d 911. This prong is designed to "evaluate whether the party asserting the right to arbitrate has clearly manifested an intent to waive its right to arbitration." Id. at 16. To make that evaluation, courts "look at the actions of the party seeking arbitration, and . . . determine 'whether those actions evidence an intent to submit to the jurisdiction of the court and pursue redress through litigation.'" Id. (quoting Cent. Fla. Invs., 2002 UT 3 at 26). Second, the party's participation in the litigation must have "resulted in prejudice to the opposing party." Id. at 14; see also Cent. Fla. Invs., 2002 UT 3 at 22, 24; Pledger v. Gillespie, 1999 UT 54, 19, 982 P.2d 572; Chandler v. Blue Cross Blue Shield, 833 P.2d 356, 360 (Utah 1992).
We have noted that "the finding of the existence of substantial participation and the finding of the existence of prejudice are factual in nature" and therefore "should be reviewed as factual determinations." Chandler, 833 P.2d at 360. Accordingly, in a case like this, where the district court has made no findings of fact on those issues, we ordinarily would remand the case to the district court with instructions to enter such findings. This case is unique, however, because the docket in the district court, as well as Dr. Rosenthal's opposition to Christine's suggestion of mootness, unequivocally reveal the very fact that we consider fatal to Dr. Rosenthal's efforts to compel arbitration: Dr. Rosenthal sought summary judgment in the district court.
Given this undisputed fact, we think it evident that Dr. Rosenthal waived his right to arbitrate. By seeking summary judgment from the district court, Dr. Rosenthal litigated the very issues he originally sought to arbitrate. In short, he proceeded as if he had not even appealed the district court's denial of his motion to compel arbitration. Dr. Rosenthal would have no reason to seek summary judgment unless he intended it to dispose of Christine's claim against him. We have no doubt that filing a motion for summary judgment, as Dr. Rosenthal did, qualifies as substantial participation "in the underlying litigation to a point inconsistent with the intent to arbitrate," Cedar Surgery Ctr., 2004 UT 58 at 14, and that Dr. Rosenthal clearly intended "'to submit to the jurisdiction of the court and pursue redress through litigation,'" id. at 16 (quoting Cent. Fla. Invs., 2002 UT 3 at 26); see also Williams Indus. v. Earth Dev. Sys. Corp., 110 S.W.3d 131, 135 (Tex. App. 2003) (noting that "moving for summary judgment" is an example of " ubstantially invoking the judicial process").
Furthermore, it is apparent that Dr. Rosenthal's summary judgment has prejudiced Christine, as it was a motion on the merits of the very claim he sought to arbitrate. See Danny's Constr. Co. v. Birdair, Inc., 136 F. Supp. 2d 134, 144 (W.D.N.Y. 2000) (noting that "sufficient prejudice exists where a party against whom waiver is asserted . . . makes motions going to the merits of an adversary's claims" (internal quotations omitted)). Though the summary judgment is not yet final, Christine has, for all intents and purposes, lost her claim against Dr. Rosenthal. While she may challenge it on appeal, she must incur expense
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