Va. Coll., LLC v. Moore


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Docket Number: 2006-CA-02064-COA

Court of Appeals: Opinion Link
Opinion Date: 02-05-2008
Opinion Author: ROBERTS, J.
Holding: Reversed and Remanded

Additional Case Information: Topic: Contract - Timeliness of appeal - M.R.A.P. 4(a) - Waiver of arbitration
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ.
Procedural History: Motion to Compel Arbitration
Nature of the Case: CIVIL - CONTRACT

Trial Court: Date of Trial Judgment: 10-23-2006
Appealed from: Hinds County Circuit Court
Judge: Winston Kidd
Disposition: THE CIRCUIT COURT DENIED THE DEFENDANTS’ MOTION TO COMPEL ARBITRATION.
Case Number: 251-06-408CIV

  Party Name: Attorney Name:  
Appellant: VIRGINIA COLLEGE, LLC AND RICHARD C. TUTTLE




ROBERT S. ADDISON, GERALD LEE KUCIA



 

Appellee: KIMBERLY MOORE AND DANA BISHOP JAMES HOWARD THIGPEN  

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Topic: Contract - Timeliness of appeal - M.R.A.P. 4(a) - Waiver of arbitration

Summary of the Facts: Kimberly Moore and Dana Bishop enrolled in a massage therapy program provided by Virginia College. They graduated and received diplomas, but they were unable to pass the state certification examination. Moore and Bishop sued Virginia College and raised several causes of action centered around the prospect of “educational malpractice.” Virginia College responded to the suit and participated in discovery. Additionally, Virginia College filed a motion to compel arbitration. The court denied Virginia College’s motion, and Virginia College appeals.

Summary of Opinion Analysis: Issue 1: Timeliness of appeal Moore and Bishop argue that Virginia College’s appeal should be dismissed as untimely. On October 23, 2006, the circuit court entered its order denying Virginia College’s motion to compel arbitration. Virginia College filed a notice of appeal on November 2, 2006. On November 15, 2006, Virginia College filed a second notice of appeal. On December 28, 2006, Moore and Bishop filed a motion to dismiss Virginia College’s appeal, arguing that the appeal was not timely filed pursuant to M.R.A.P. 5, which governs interlocutory appeals. On January 10, 2007, the supreme court entered an order by which it dismissed Moore and Bishop’s motion to dismiss. The supreme court’s order is dispositive of this issue. In addition, the appeal is timely. Virginia College had thirty days to appeal the circuit court’s order under M.R.A.P. 4(a). Both Virginia College’s November 2, 2006, notice of appeal and its November 23, 2006, notice of appeal were filed within thirty days of the circuit court’s order denying Virginia College’s motion to compel arbitration. Issue 2: Waiver of arbitration A party seeking to invoke arbitration may waive that right if it actively participates in litigation. Virginia College argues that it did not delay to assert its right to arbitrate. While it is true that Virginia College took part in the pretrial litigation process, it consistently advanced its arbitration rights. At the same time it filed its answer, Virginia College filed its motion to compel arbitration. Although Virginia College responded to Moore and Bishop’s discovery requests, it also stated, “Any response provided by Virginia College to these interrogatories shall not be deemed as a waiver of Virginia College’s right to arbitration.” Therefore, this case is reversed and remanded for further consideration by the circuit court.


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