AMERICAN GENERAL HOME EQUITY INC BELPRE, OH Business Data
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588 citing Moses H. Cone Memorial Hospital v. Mercury Const. (“So, too, the presumption is that the arbitrator should decide allegation of waiver, delay, or a like defense to arbitrability.”) (quotation marks omitted.). See, e.g., Fischer v. Fischer, 197 S.W.3d 98, 103 (Ky.2006) ( “Appellee's failure to raise the issue in the Court of Appeals does not prevent Appellant from presenting it here as he had no duty to present it to the Court of Appeals since he defended the trial court decision and it had to be affirmed if it was sustainable on any basis.”). ("So, too, the presumption is that the arbitrator should decide allegation of waiver, delay, or a like defense to arbitrability.") (quotation marks omitted.).
In early November 2004, Kestel made her first discovery requests to American General. About three weeks later, American General moved to compel arbitration and to stay the Mercer Circuit Court action. Among her arguments in response to arbitration, Kestel countered that the arbitration provisions in the November note were not applicable to her and, alternatively, that American General had waived its arbitration rights through its litigation conduct. We note that these are federal employment discrimination cases, and we express no opinion concerning their application beyond the context of federal employment discrimination litigation. Naturally, if the issue is raised to the trial court on proper motion, the parties could brief whether Kestel is entitled to such a hearing and/or to any other appropriate relief under any applicable law. Kestel cites Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 663 (6th Cir.2003) and Walker v. Ryan's Family Steak Houses, Inc., 400 F.3d 370, 385 (6th Cir.2005) for this proposition.
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See also Interconex, Inc. v. Ugarov, 224 S.W.3d 523, 534 (Tex.App.2007) (stating that trial court's determination of whether arbitration rights had been waived by implication through inconsistent conduct was subject to de novo review); O.J. We also note that although the Court of Appeals did not expressly reach the question of whether a court or arbitrator should decide whether a party's litigation conduct constituted a waiver of its arbitration rights, the Court of Appeals itself decided that the party's litigation conduct did not constitute waiver while reversing the trial court's decision not to compel arbitration on the basis of unconscionability in Conseco Finance Servicing Corp. v. Wilder, 47 S.W.3d 335, 344–45 (Ky.App.2001). Amicus Curiae, The Kentucky Justice Association, suggests in its brief that arbitration procedures, which "deny discovery", finally motivated the filing of the motion to compel arbitration.
See The Beyt, Rish, Robbins Group, Architects v. Appalachian Regional Healthcare, Inc., 854 S.W.2d 784, 786 (Ky.App.1993). That case did not present the question of whether arbitration rights had been waived through inconsistent conduct in litigation but, rather, a question of pure delay in demanding arbitration outside of court. American General cites the United States Supreme Court decision in the Howsam case, which states in dicta that generally questions of waiver are presumed to be issues for the arbitrator rather than a court. But Howsam did not actually reach the question of litigation-conduct waiver. Rather Howsam focused upon whether a party waived its arbitration rights by not complying with a contractual time limitation for asserting arbitration. Some federal courts have applied Howsam's dicta to conclude that litigation-conduct waiver must be decided by arbitrators, while other federal courts have continued to decide litigation-conduct waiver issues themselves even after Howsam.
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Constructors, Inc., 448 F.3d 343, 346 (6th Cir. (Ky.) 2006) (“Kentucky has adopted the Uniform Arbitration Act, which mirrors the FAA in several respects. Furthermore, Kentucky courts take a broad view of the enforceability of arbitration agreements․ Kentucky law is thus entirely consistent with and complementary to the provisions of the FAA.”) (citations omitted.). Countrywide moved for partial summary judgment, arguing that the quit claim deed from Ferguson to Pack was defective because it was not signed by two subscribing witnesses as required by Florida law. Thus the quit claim deed was insufficient to convey title to Pack.
The merits of the litigation-conduct waiver issue in its reply brief to the Court of Appeals. In summary, we hold that the Court of Appeals has the discretion to address an issue that the appellee did not raise by prehearing statement if it so chooses. “e have interpreted the KUAA consistent with the FAA․” Louisville Peterbilt, Inc. v. Cox, 132 S.W.3d 850, 857 (Ky.2004).
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The Court of Appeals mentions in its opinion the fact that American General did not respond to Kestel's litigation-conduct waiver argument with any explanation for the delay in its reply brief. We further note that no real explanation for the delay was given at oral argument before this Court other than waiting on resolution of the motion to strike arbitration defenses , even though American General clearly was aware of the existence of the arbitration agreement very shortly after Kestel filed her counterclaims. As Kestel concedes, American General's filing of the foreclosure action in circuit court by itself cannot constitute waiver of its arbitration rights since Kentucky is a judicial foreclosure state requiring the filing of a circuit court action to pursue foreclosure as a remedy. Naturally, in other types of disputes where the filing of a court action is not necessary to obtain the desired relief, the filing of a court action itself might be inconsistent with asserting arbitration rights.
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Amicus Curiae, The Kentucky Justice Association, suggests in its brief that arbitration procedures, which “deny discovery”, finally motivated the filing of the motion to compel arbitration. American General argues that the Court of Appeals erred by considering the issue of litigation-conduct waiver because Kestel had failed to file a supplemental prehearing statement requesting review of that particular issue. We must disagree with American General's argument here, which misconstrues CR 76.03 governing the Court of Appeals' requirements on prehearing conferences and prehearing statements. Apparently, the Court of Appeals also rejected American General's argument because it affirmed the trial court's ruling on the grounds of litigation-conduct waiver in the face of American General's same argument that Kestel's failure to raise the litigation-conduct waiver issue in a prehearing statement barred consideration of the argument. Naturally, in other cases where the party seeking arbitration has not given notice of a possible arbitration defense and/or has defended numerous motions filed by the other party without continuing to assert the possibility of arbitration, the fact that his actions have been solely defensive might not always defeat claims of waiver.
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The trial court entered partial summary judgment in favor of Countrywide, on that ground. Although the trial court did not make factual findings as to waiver, the relevant facts of this case (i.e., the litigation conduct that occurred) are clearly established in the trial court record. M. Bradley Luczak of Sobering, White & Luczak, P.A., Orlando, for Appellees. American General Home Equity, Inc. appeals from a partial final summary judgment which determined that its mortgage was inferior to a mortgage held by Countrywide Home Loans, Inc. on the same property.
So we do not believe we should violate the law-of-the-case principle to reach Kestel's issue. Sallee v. Sallee, 142 S.W.3d 697, 698 (Ky.App.2004) (refusing to reach appellant's argument to reverse trial court's judgment on maintenance that was not among issues raised in prehearing statement or by timely motion under CR 76.03). Kestel contends that she is entitled to a hearing before the trial court concerning whether she can effectively vindicate her federal statutory rights in arbitration before the trial court could stay the court action and compel arbitration.41 Because this issue was understandably not raised in the trial court since Kestel prevailed there, we decline to express any opinion on it. But we see no reason why Kestel could not raise this issue in the trial court upon timely motion on remand.42 So, rather than direct the trial court to enter an order compelling arbitration at this time, we will simply reverse and remand for proceedings consistent with this opinion. We believe that the significance of this rule is that the Court of Appeals will not consider arguments to reverse a judgment that have not been raised in the prehearing statement or on timely motion. After all, the issues on appeal are the issues used to challenge the trial court's judgment.
It contends that federal court decisions construing the FAA require that arbitrators decide whether waiver should be implied based on litigation conduct. We reject American General's argument on this point because, even reviewing pertinent federal cases, we find little support for American General's interpretation of federal cases as mandating that litigation-conduct waiver must be decided by an arbitrator. Kestel points out that American General did not demand arbitration when responding to her motions for partial summary judgment and to strike arbitration defenses. In short, American General did nothing to avail itself of the power of the court in any offensive maneuver between the time it filed its foreclosure complaint and the time it filed its motion to compel arbitration. American General further takes issue with the Court of Appeals considering litigation-conduct waiver by arguing that arbitrators rather than courts should resolve issues of whether rights under an otherwise binding agreement to arbitrate have been waived through a party's litigation conduct.
Because waiver is not to be lightly inferred and because the general policy of both federal law and Kentucky law is to favor arbitration where parties have reached a valid agreement that disputes be arbitrated, courts must enforce arbitration agreements where the party seeking arbitration has not engaged in litigation conduct that is clearly inconsistent with asserting their arbitration rights. We need not resolve whether prejudice must be shown to resolve this case, and we leave that question for another day. In any event, we would expect the other party to be most prejudiced where the party seeking arbitration has acted most inconsistently with a desire to resolve the dispute by arbitration rather than litigation.
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