Norvell, et al. v. Parkhurst, etc., [Ms. 1160696, Nov. 9, 2017] __ So. 3d __ (Ala. 2017). This unanimous decision by Chief Justice Stuart (Bolin, Murdock, Main, and Bryan, JJ., concur), reversed an order of the Lauderdale Circuit Court lifting a stay and granting motion for partial summary judgment.
Parkhurst and Norvell had agreed to dissolve their accounting partnership and executed a written agreement of dissolution. Ms. *3. They also agreed to arbitrate disputes concerning the dissolution. Ms. *4. Following Parkhurst’s death, his spouse and personal representative filed this action alleging that Norvell had improperly adjusted Parkhurst’s capital account and had failed to make monthly payments to Parkhurst required by the dissolution agreement. Ms. *7. The circuit court granted Parkhurst’s motion to compel Norvell to arbitrate the dispute and stayed the action “‘until the arbitration is completed and an award is entered.’” Ibid.
Subsequently, Parkhurst filed a motion in the trial court to lift the stay and for partial summary judgment. Ms. *11. The trial court lifted the stay and granted Parkhurst’s motion for partial summary judgment. Ms. *12.
In reversing, the Court noted that “a direct appeal is the proper vehicle by which to challenge a trial court’s refusal to stay matters pending arbitration ....” Ms. *12-13. The Court rejected Parkhurst’s contention that Norvell had waived the right to enforce the arbitration agreement. The Court noted that “to make out a case of implied waiver of a legal right, there must be a clear, unequivocal, and decisive act of the party showing such purpose.” Ms. *16 (internal quotation marks and citations omitted). The Court noted that though Norvell had argued that the arbitrator lacked the authority to consider dispositive motions, it did “not necessarily follow that Norvell [was] therefore arguing that the trial court does have that authority.” Ms. *17.
The Court also rejected Parkhurst’s contention that Norvell expressly waived arbitration in a conference call with the mediator. The Court held
[W]e have before us only the unsupported assertions of counsel on either side. Even if Norvell did not expressly refute Parkhurst’s recollection of the conference call, however, unsupported assertions concerning the substance of that call could not form the basis of a judgment on appeal affirming the trial court’s decision to lift the stay. As explained in Davant v. United Land Corp., 896 So. 2d 475, 483 (Ala. 2004), this is not because we doubt counsel’s integrity or credibility, but because, as an appellate court, we are limited to the facts as established by the record. There is no evidence in the record from which we can conclude that Norvell clearly waived his right to proceed in arbitration. ...”
Ms. *18-19.