In Re: Tyco Int'l Inc., et al.


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Docket Number: 2002-M-00048-SCT
Linked Case(s): 2002-M-00048-SCT

Supreme Court: Opinion Link
Opinion Date: 08-18-2005
Opinion Author: Randolph, J.
Holding: Reversed and Remanded

Additional Case Information: Topic: Contract - Arbitration - Waiver
Judge(s) Concurring: Waller, P.J., Easley, Carlson, Graves and Dickinson, JJ.
Non Participating Judge(s): Diaz, J.
Concur in Part, Concur in Result 1: Smith, C.J., without separate written opinion
Concurs in Result Only: Cobb, P.J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - CONTRACT

Trial Court: Date of Trial Judgment: 09-23-2003
Appealed from: Jones County Circuit Court
Judge: Billy Joe Landrum
Disposition: The trial court granted motion to compel arbitration
Case Number: 2000-104-CV6
  Consolidated: Consolidated with 2003-CA-02590-SCT Aaron D. Williams d/b/a Aaron Williams Auto Sales v. Tyco International (US) Inc.; ADT Automotive, Inc., d/b/a Mississippi Auto Auction, Inc.; Judy Taylor; Angie Taylor; and Bill Benton; Jones Circuit Court 2nd District; LC Case #: 2000-104-CV6; Ruling Date: 09/23/2003; Ruling Judge: Robert Walker

  Party Name: Attorney Name:  
Appellant: In Re: Tyco International (US) Inc., ADT Automotive, Inc., ADT Security Services, Inc., Mississippi Auto Auction, Inc., Bill Benton, Judy Taylor and Angie Taylor




E. GREGORY SNOWDEN



 

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Topic: Contract - Arbitration - Waiver

Summary of the Facts: Aaron D. Williams d/b/a Williams Auto Sales filed a complaint against Tyco International (US) Inc.; ADT Automotive, Inc. d/b/a Mississippi Auto Auction, Inc.; ADT Security Services, Inc.; Bill Benton, both in his individual capacity and as agent; Judy Taylor, both in her individual capacity and as agent; Angie Taylor, both in her individual capacity and as agent; Robinson-Adams Insurance, Inc. d/b/a Auction Insurance Agency; and Thomas J. Adams, Jr., both in his individual capacity and as agent. The Tyco defendants filed a motion to recuse Circuit Judge Billy Joe Landrum, and also filed a motion to dismiss, or in the alternative, to transfer venue. Before either of the two motion filed by the Tyco defendants were ruled upon, the Tyco defendants filed a motion for stay of discovery. The judge entered an order denying the Tyco defendants’ motions. The court ordered the Tyco defendants to respond to Williams’ discovery requests within twenty days from the date of the order. Approximately nine months following the filing of Williams’ complaint, the Tyco defendants filed their joint answer and defenses, wherein they asserted as a fourth affirmative defense that the plaintiff is bound to arbitrate the matters alleged in the complaint. The circuit judge did not rule on the Tyco defendants’ request for certification of the recusal and venue issues for interlocutory appeal, so they filed a petition for extraordinary writ of prohibition and/or mandamus in the Supreme Court seeking to require the circuit judge to rule on the motion for certification of issues for interlocutory appeal or to recuse himself. The Court granted the Tyco defendants’ petition, thereby requiring Judge Landrum to recuse himself from further participation in the proceedings. When Judge Landrum executed an order recusing himself, the Supreme Court appointed a special judge. Over three years subsequent to the filing of Williams’ complaint and after the discovery and filing of pre-trial dispositive motion deadlines had passed, the Tyco defendants moved for a stay of proceedings and to compel Williams to arbitrate his claims against them. The judge entered an order granting the Tyco defendants’ motion for stay of proceedings and to compel arbitration. Williams filed a motion for reconsideration, to amend or alter judgment, or in the alternative, for Rule 54(b) certification. During the period in which Williams’ motion was pending, the trial court entered orders granting summary judgment in favor of the Robinson-Adams defendants. The trial court subsequently denied Williams’ motion for reconsideration, to amend or alter judgment, or in the alternative, for Rule 54(b) certification. Williams appeals.

Summary of Opinion Analysis: Williams argues that the Tyco defendants impliedly waived their right to seek arbitration through their active participation in this litigation and by their excessive delay of three years before making a demand to compel arbitration. Additionally, Williams argues that the Tyco defendants expressly waived their right to arbitration because they did so twice in writing. In Mississippi, a party waives the right to arbitrate when it actively participates in a lawsuit or takes other action inconsistent with the right to arbitration. Taking advantage of pre-trial litigation such as answers, counterclaims, motions, requests, and discovery obviates the right to arbitration. Inclusion of the defense of arbitration in an answer is not determinative, but rather is a factor to be considered along with the other facts existing in the case. The Tyco defendants have waived the right to arbitration based upon their active participation in the lawsuit and their taking of actions inconsistent with the right to arbitration, beginning with their very first pleadings. The Tyco defendants’ first pleadings were motions to recuse the trial judge, dismiss, or in the alternative, to transfer venue, none of which sought to invoke arbitration. The Tyco defendants’ multiple acts of seeking judicial relief from the trial court, including a dispositive motion, is clearly inconsistent with seeking arbitration. Importantly, the Tyco defendants’ motion to compel arbitration was filed more than three years following the filing of Williams’s complaint and more than two and one-half years following the filing of their answer.


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