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Baker v. Stevens5/31/2005
s she would have avoided had Dr. Rosenthal confined his efforts to arbitration. She is therefore prejudiced. Additionally, allowing arbitration following the filing of a dispositive motion in litigation would give the moving party two bites at the apple. Under these circumstances, we have no difficulty finding prejudice.
We conclude that Dr. Rosenthal waived his right to arbitrate and, along with it, his ability to compel Christine to arbitrate her claim against him. This conclusion provides an independent basis on which to affirm the trial court's denial of Dr. Rosenthal's motion to compel arbitration and obviates the need for us to discuss the parties' remaining claims.
CONCLUSION
We affirm the district court's denial of Dr. Rosenthal's motion to compel Christine to arbitrate her wrongful death claim on the alternate ground that Dr. Rosenthal waived his right to arbitrate.
Associate Chief Justice Wilkins, Justice Durrant, Justice Nehring, and Judge Dever concur in Justice Parrish's opinion.
Having disqualified herself, Chief Justice Durham does not participate herein; District Judge L. A. Dever sat.
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