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ARBITRATION - WAIVER OF RIGHT TO ARBITRATE - NATION V. LYDMAR REVOCABLE TRUST

Nation v. Lydmar Revocable Trust, [Ms. 1160660, Sept. 22, 2017] __ So. 3d __ (Ala. 2017). In a decision by Justice Parker (Stuart, C.J., and Murdock, Main, Wise, and Bryan, JJ., concur, and Bolin, Shaw, and Sellers, JJ. concur in the result) the Court reverses the circuit court’s order returning a case to the active docket after the circuit court had previously granted the defendants’ motion to compel arbitration.

The circuit court granted the defendants’ motion to compel arbitration and after the plaintiff had not initiated an arbitration proceeding for some time, the defendants moved the circuit court to dismiss the case without prejudice. The plaintiff responded arguing that because the defendants had not initiated an arbitration proceeding after the order compelling arbitration, the case should be returned to the active docket. The circuit court entered an order returning the case to the active docket. The defendants appealed.

Noting that the circuit court’s order stated no reason for returning the case to the active docket, the Court concluded that the order was based upon the circuit court’s conclusion that by failing to initiate an arbitration proceeding, the defendants had waived their right to compel arbitration. Ms. *9.

Construing the applicable arbitration provisions as well as the commercial arbitration rules of the American Arbitration Association (“AAA”), the Court concluded that the claimant, i.e., the plaintiff, had the burden to initiate the arbitration process. Ms. *14-15. Accordingly, the Court reversed the circuit court’s order returning the case to the active docket because the defendants were not obliged to initiate arbitration. Ms. *21.

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