                                         Apr 04 2013, 9:17 am
FOR PUBLICATION


ATTORNEYS FOR APPELLANTS:      ATTORNEYS FOR APPELLEE,
                               Barth Electric Co., Inc.:
V. SAMUEL LAURIN, III
BRYAN H. BABB                  KARL L. MULVANEY
KEVIN M. QUINN                 GERARD L. GREGERSON
Bose McKinney & Evans, LLP     AARON E. ROSE
Indianapolis, Indiana          Bingham Greenebaum Doll, LLP
                               Indianapolis, Indiana
MARC A. SANCHEZ
PHILLIP J. TRUAX               ATTORNEY FOR APPELLEE,
Frantz Ward, LLP               Roth Bros., Inc.:
Cleveland, Ohio
                               TASHA R. ROBERTS
                               Wong Fleming, P.C.
                               Indianapolis, Indiana

                               ATTORNEYS FOR APPELLEE,
                               E.P.I. of Cleveland, Inc.:

                               GEOFFREY M. GRODNER
                               JARED S. SUNDAY
                               Mallor Grodner, LLP
                               Bloomington, Indiana

                               ATTORNEYS FOR APPELLEE,
                               Elbrecht Investments, LLC d/b/a
                               Elbrecht Concrete:

                               GENE R. LEEUW
                               JOHN M. MEAD
                               Leeuw Oberlies & Campbell, P.C.
                               Indianapolis, Indiana


                          IN THE
                COURT OF APPEALS OF INDIANA
WELTY BUILDING COMPANY, LTD. and,                 )
OHIO FARMERS INSURANCE COMPANY,                   )
                                                  )
       Appellants-Defendants,                     )
                                                  )
               vs.                                )    No. 49A02-1206-PL-493
                                                  )
INDY FEDREAU COMPANY, LLC., et al.,               )
                                                  )
       Appellees-Plaintiffs,                      )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Timothy W. Oakes, Judge
                            Cause No. 49D13-1111-PL-44182


                                       April 4, 2013

                               OPINION - FOR PUBLICATION


BARNES, Judge

                                     Case Summary

       Welty Building Company Ltd. (“Welty”) and Ohio Farmers Insurance Company

(“OFIC”) appeal the trial court’s denial of their motions to stay proceedings and to

compel arbitration. We reverse and remand.

                                          Issue

       The sole restated issue before us is whether the trial court properly concluded that

Welty was not entitled to demand that its disputes with its subcontractors be submitted to

arbitration.




                                            2
                                           Facts

       Welty, which is based in Ohio, was the general contractor on a project to construct

a new FBI headquarters in Indianapolis. The owner of the building was Indy Fedreau

Company, LLC (“Fedreau”), which also is based in Ohio and would lease the building to

the FBI. OFIC provided a contract performance bond on Welty’s behalf for the project.

Welty hired the following twenty-one subcontractors to work on the project:

Architectural Granite & Marble, Inc. (“AGM”), Barth Electric Co, Inc. (“Barth”), Becker

Landscape Contractors, Inc. (“Becker”), Brown Sprinkler Corporation (“Brown”), C.E.

Reeve Roofing (“C.E. Reeve”), Certified Floorcovering Services, Inc. (“Certified”),

Circle B Construction Systems, LLC (“Circle B”), Door & Hardware Installation of

Indiana, Inc. (“Door & Hardware”), Elbrecht Investments, LLC (“Elbrecht”), E.P.I. of

Cleveland, Inc. (“E.P.I.”), FA Wilhelm Construction Co., Inc. (“FA Wilhelm”), Gate

Precast Company and Gate Precast Erection (collectively “Gate”), JACCO & Associates,

Inc. (“JACCO”), Koch Corporation (“Koch”), Leach & Russell Mechanical Contractors,

Inc. (“Leach & Russell”), Long Fence Company, Inc. (“Long Fence”), Porta-King

Building Systems (“Porta-King”), Roth Bros., Inc. (“Roth”), Schindler Elevator

Corporation (“Schindler”), and Sexson Mechanical Corporation (“Sexson”).

       Each of Welty’s subcontracts contained the following provisions regarding

mediation and arbitration in Article 37 of the subcontract:

                     Any claim arising out of or related to this Subcontract,
              except claims as otherwise provided in Article 24 and except
              those waived in this Subcontract, shall be subject to

                                             3
             mediation as a condition precedent to arbitration or the
             institution of legal or equitable proceedings by either party.

                                         *****

                     The Subcontractor agrees that the Contractor may, in
             its sole discretion, elect arbitration with respect to any dispute
             or claim arising out of or relating to this Subcontract or the
             breach or performance hereof, and if arbitration is so elected
             by the Contractor, then the arbitration shall be conducted and
             decided by a private arbitrator . . . .

Appellant’s App. pp. 307-08.

      Fedreau became dissatisfied with Welty’s performance on the project.            On

November 16, 2011, Fedreau filed suit against Welty, as well as against OFIC on its

bond, alleging breach of contract, breach of bond, fraud, and bad faith. Among other

claims, the complaint alleged that Welty ran up the cost of the project by requesting

various subcontractors to perform unnecessary work in excess of the original scope of the

project without prior approval from Fedreau. Fedreau also asserted that Welty was not

timely paying its subcontractors, despite full payment for approved work from Fedreau to

Welty, which ultimately resulted in numerous mechanic’s liens being recorded by

subcontractors against the property. Fedreau demanded that Welty obtain removal of the

liens “by discharging them through payment or by substituting a bond for the lien(s),” but

Welty did not do so. Id. at 82. The complaint sought damages from Welty and/or OFIC

in the amount of $6,401,015.18.

      The complaint also noted that on March 28, 2011, Elbrecht had sued Fedreau to

foreclose its mechanic’s lien; that complaint also named Welty as a co-defendant for

                                             4
breach of contract and Gate as a co-defendant because of its own mechanic’s lien filing

that was on record at the time.1 On April 25, 2011, Welty filed a motion in that case “To

Stay All Court Proceedings Pending Mediation and Arbitration.” Elbrecht App. p. 53.

The trial court granted this motion.              Elbrecht and Welty participated in mediation,

unsuccessfully, on February 15, 2012.                Elbrecht immediately requested that Welty

nominate an arbitrator, and Welty responded by letter on February 21, 2012: “Welty has

not elected whether Elbrecht[’s] payment claim will proceed through arbitration.”

Appellant’s App. p. 347. Gate also participated in mediation with Welty on February 15,

2012, which likewise was unsuccessful.

          Welty also engaged in informal settlement negotiations with Leach & Russell

regarding payment of its invoices, and in particular whether Welty was required to pay

Leach & Russell without Fedreau having first paid to Welty all of Welty’s submitted

invoices. A letter from Welty to Leach & Russell dated January 6, 2011, stated in part:

                  Welty maintains that the parties should review and seek
                  agreement on the subcontract accounting and additional/extra
                  scope issues before resorting to formal dispute resolution,
                  which again, is unlikely to be a productive exercise so long as
                  Indy Fedreau refuses to pay for the work Welty and Leach &
                  Russell performed.

                  That said, if Leach & Russell continues to insist upon
                  mediation, Welty can agree to Richard Kraege as a mediator.
                  But Welty encourages Leach & Russell to first consider a
                  meeting to review the issues and accounting before
                  compelling the parties to incur significant costs to engage in
                  mediation under the circumstances above.

1
    This lawsuit was consolidated into the present case in May 2012.
                                                      5
Id. at 514. On January 12, 2012, Leach & Russell agreed to the informal meeting “prior

to engaging in mediation.” Id. at 515.

          On January 26, 2012, Welty filed an amended counterclaim in the Fedreau case

for breach of contract, declaratory judgment, and promissory estoppel. Welty also sought

foreclosure of its own mechanic’s lien against the FBI property, in the amount of

$6,573,358.58. As part of its mechanic’s lien foreclosure count, which was count II of

the counterclaim, Welty joined as defendants all of the above-named subcontractors2 “to

answer as to any interest [they] may have in the Property,” with respect to mechanic’s

lien notices that they had filed. Id. at 166-70. The mechanic’s lien foreclosure count also

stated, “Welty specifically reserves all rights to mandatory mediation and binding

arbitration with the Counterclaim Defendants under Article 37 of the subcontracts.” Id.

at 170. It further stated that the subcontractors “have been named for the sole purpose of

permitting [them] to assert their interest in the Property, and without waiving Welty’s

contractual right to mediation and arbitration . . . .” Id.

          The declaratory judgment count of Welty’s counterclaim, which was count III,

stated, “There exists a controversy regarding Welty’s damages and entitlement under the

Contract.” Id. at 171. This count sought a declaration “that, among other things . . .

Welty is not obligated to satisfy the mechanic’s liens of its subcontractors without full

payment by Indy Fedreau . . . .” Id. at 171-72. This count also stated:



2
    Welty apparently later reached a settlement with Long Fence.
                                                     6
               Welty is also entitled to a declaration . . . that its mechanic’s
               lien claim against the property at issue is a valid and
               subsisting lien against the Property in the amount of
               $6,573,358.58, . . . and that the lien be foreclosed, that the
               property be sold as if on execution, that Plaintiff and all co-
               Defendants who have some interest in the property be
               required to set forth their various claims or be forever barred,
               that the liens be marshaled and their priority established
               according to law, and that the proceeds be applied in payment
               of Welty’s claims and the lien and interest of the other
               parties.

Id. at 172.

       On February 28, 2012, Gate filed a motion “to stay these proceedings pending

binding arbitration.” Id. at 180. The motion stated that Welty had elected to arbitrate any

dispute with Gate, by virtue of its motion to stay the March 2011 lawsuit pending

arbitration.   The motion further acknowledged that “Welty’s joining of the Gate

Defendants to [the Indy Fedreau-Welty lawsuit and counterclaims] is proper to preserve

their claims and priority” but that staying the action was necessary because of Welty’s

prior election to arbitrate. Id. at 181. It does not appear the trial court ever ruled on this

motion.

       A number of subcontractors subsequently filed counterclaims against Welty as

part of their answers: Barth, Brown, Certified, Circle B, Door & Hardware, Elbrecht,

E.P.I., FA Wilhelm, Gate, Koch, and Sexson. The first of these answers/counterclaims

was filed on February 14, 2012, and the latest was filed on March 28, 2012.

       On April 4, 2012, Welty and OFIC filed their own “Motion to Stay Welty’s

Subcontractors’ Claims Against Them Pending Mediation and Arbitration.” App. p. 269.

                                              7
Other subcontractors filed answers to Welty’s counterclaims after this date. The motion

only sought a stay of the subcontractors’ counterclaims for payments due and owing

against Welty and OFIC. It expressly did not seek a stay of litigation between Fedreau

and Welty, and it also did not seek to stay mechanic’s lien foreclosure cross-claims that

the subcontractors had filed against Fedreau. The following subcontractors filed or

joined in motions opposing Welty and OFIC’s motion to stay: Barth, Becker, Brown,

Certified, Circle B, Door & Hardware, Elbrecht, E.P.I., FA Wilhelm, JACCO, 3 Leach &

Russell, Schindler, and Sexson. The subcontractors specifically contended that Welty

had waived the right to insist upon arbitration of the subcontractors’ claims.

        On April 25, 2012, counsel for Welty wrote letters to the subcontractors that stated

in part, “To the extent we cannot reach an agreement holding your clients claims against

Welty in abeyance, Welty elects arbitration of the disputes between them . . . . [I]f we

cannot agree on a standstill, liquidating agreement or other arrangement, arbitration will

take place in Akron, Ohio.” Id. at 516.

        On May 24, 2012, the trial court issued its ruling denying Welty and OFIC’s

motion to stay, agreeing with the subcontractors that Welty had waived its contractual

right to insist upon arbitration. On June 4, 2012, Welty and OFIC filed a “Motion to

Compel Arbitration and Stay Proceedings.” Id. at 549. On June 19, 2012, the trial court

ruled that this subsequent motion was “moot” in light of its May 24, 2012 order. Id. at

65. Welty and OFIC initiated this appeal on June 20, 2012. On appeal, a joint appellee’s
3
 Welty and OFIC assert in their reply brief that JACCO did not join in opposition to the motion to stay,
but our review of the CCS indicates that it did.
                                                   8
brief has been filed by Barth, Becker, Brown, C.E. Reeve, Certified, Circle B, Door &

Hardware, E.P.I., FA Wilhelm, Gate, Leach & Russell, Roth, and Sexson. Elbrecht has

filed its own separate appellee’s brief.4

                                                Analysis

        None of the parties contend that Article 37 of the subcontracts regarding mediation

and arbitration is generally void or unenforceable, or that the disputes between Welty and

the subcontractors fall outside its terms.5 Instead, the subcontractors contend Welty has

waived its ability to insist on arbitration of their disputes. Even where parties have

entered into a valid and enforceable agreement to submit disputes to arbitration, the right

to require such arbitration may be waived. Capitol Constr. Servs., Inc. v. Farah, LLC,

946 N.E.2d 624, 628 (Ind. Ct. App. 2011). A finding of waiver of the right to arbitrate

depends primarily upon whether a party has acted inconsistently with that right. Id.

Waiver need not be in express terms and may be implied from the acts, omissions, or

conduct of the parties. Id. “In determining if waiver has occurred, courts look at a

variety of factors, including the timing of the arbitration request, if dispositive motions

have been filed, and/or if a litigant is unfairly manipulating the judicial system by


4
  On appeal, this leaves AGM, JACCO, Koch, Porta-King, and Schindler without a brief indicating their
position in this case. Nonetheless, all parties before the trial court are automatically parties on appeal.
See Ind. Appellate Rule 17(A). We also note some confusion in that not all of the parties who are
opposing Welty and OFIC on appeal joined in opposing their motion to stay before the trial court. Gate,
in fact, had filed its own motion to stay. We need not sort out all of this confusion, or decide whether
some parties waived any opposition to Welty and OFIC’s motion to stay, given our ultimate holding that
the trial court erred in denying that motion altogether.
5
  The subcontractors do assert that OFIC lacks any contractual right to arbitration with them, an assertion
that OFIC fails to counteract. We address this issue later in the opinion.
                                                    9
attempting to obtain a second bite at the apple due to an unfavorable ruling in another

forum.” Id. Waiver of a contractual right, including the right to arbitrate, requires a

showing of an intentional relinquishment of a known right. Northern Indiana Commuter

Transp. Dist. v. Chicago SouthShore and South Bend R.R., 685 N.E.2d 680, 695 (Ind.

1997).

         Whether waiver of the right to arbitrate has occurred generally is a question of fact

under the circumstances of each case. Id. Regardless, we review de novo a trial court’s

ruling on a motion to compel arbitration, as well as similar motions that are of the same

effect.6 Id. This is especially true, given that to the extent the trial court had to resolve a

“factual” issue regarding waiver, it did so based entirely upon a paper record and,

moreover, there does not appear to be any dispute about the underlying facts of this case.

In such cases, there is no appellate deference to a trial court’s factual findings or

judgment. See GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001); Williams v.

Tharp, 934 N.E.2d 1203, 1215 (Ind. Ct. App. 2010), trans. denied.

         We further consider in deciding this case that public policy in Indiana favors

enforcement of arbitration provisions.            Capitol Constr. Servs., 946 N.E.2d at 628.

Additionally, because this case involves interstate commerce by virtue of parties from

multiple states, the Federal Arbitration Act and cases decided thereunder applies here.


6
 The subcontractors argue in part that Welty and OFIC’s original motion to stay was not a motion to
compel arbitration. This court, however, has treated other motions, such as motions to dismiss because of
an extant arbitration agreement, effectively as motions to compel arbitration. See Capitol Constr. Servs.,
946 N.E.2d at 628; Roddie v. North American Manufactured Homes, Inc., 851 N.E.2d 1281, 1284 (Ind.
Ct. App. 2006). We will treat the original motion to stay as a motion to compel arbitration.
                                                   10
See MPACT Constr. Group, LLC v. Superior Concrete Constructors, Inc., 802 N.E.2d

901, 904 (Ind. 2004) (citing 9 U.S.C. §§ 1, 2). Federal policy, like Indiana’s, favors

arbitration when possible. Id. at 906. The United States Supreme Court has stated, in

light of this policy, that “any doubts concerning the scope of arbitrable issues should be

resolved in favor of arbitration, whether the problem at hand is the construction of the

contract language itself or an allegation of waiver, delay, or a like defense to

arbitrability.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25,

103 S. Ct. 927, 941 (1983).

       Before turning to the merits, we acknowledge Welty and OFIC’s argument in its

opening brief that the trial court should not have even ruled on the waiver issue, but that a

ruling on that issue itself should have been submitted to arbitration. See, e.g., Novotny v.

Renewal by Andersen Corp., 861 N.E.2d 15, 21 (Ind. Ct. App. 2007) (stating that issues

such as waiver of an arbitration clause are to be determined during arbitration). As

pointed out by Elbrecht, Welty and OFIC did not make this argument before the trial

court, although they were well aware that the subcontractors were relying upon waiver to

avoid enforcement of the subcontracts’ arbitration provision. Generally, parties cannot

raise an argument for the first time on appeal. Leone v. Keesling, 858 N.E.2d 1009, 1015

(Ind. Ct. App. 2006), trans. denied. An exception to this rule is a claim that a trial court

lacked subject matter jurisdiction, which may be raised at any time. City of East Chicago

v. Copeland, 839 N.E.2d 737, 742 (Ind. Ct. App. 2005), trans. denied. Although Welty

and OFIC generically say the trial court here lacked “jurisdiction” to rule on the issue of

                                             11
waiver, they do not explain how this impacted the trial court’s subject matter jurisdiction

to rule on their motion to stay for purposes of arbitration, nor do they make any response

in their reply brief to Elbrecht’s claim that they have waived this argument on appeal. As

such, we conclude Welty and OFIC have waived their argument that the trial court could

not rule on the arbitration waiver issue.

          Turning finally to the merits, the subcontractors argue that Welty “elected” to file

suit against them, via counterclaims in the Fedreau-Welty lawsuit, without first availing

itself (in most cases) of the mediation provision in Article 37 of the subcontracts. 7 This,

in turn, resulted in waiver of Welty’s ability to insist upon arbitration of its disputes with

the subcontractors, pursuant to the second part of Article 37, according to the

subcontractors. The subcontractors also contend that Welty was aware, pre-litigation,

that they were making claims for payment from Welty, via proofs of claim filed with

OFIC and notices of intention to hold a mechanic’s lien against Indy Fedreau’s property,

and essentially that Welty should have been proactive in seeking mediation of all the

subcontractors’ claims for payment before the filing of the counterclaims.

          The difficulty with the subcontractors’ overall argument is their repeated

insistence that Welty “elected” to sue them and deliberately bypassed Article 37 of the

subcontract—both its mediation and arbitration provisions—in doing so. Welty argues

that its mechanic’s lien foreclosure counterclaim against Indy Fedreau was a compulsory

counterclaim under Indiana Trial Rule 13(A). “A compulsory counterclaim is one that

7
    As recited earlier, Welty did engage in mediation with Gate and Elbrecht.
                                                     12
‘arises out of the transaction or occurrence that is the subject-matter of the opposing

party’s claim and does not require for its adjudication the presence of third parties of

whom the court cannot acquire jurisdiction.’”        Hilliard v. Jacobs, 927 N.E.2d 393,

401 (Ind. Ct. App. 2010) (quoting Ind. Trial Rule 13(A)), trans. denied.                 The

subcontractors have made no attempt to argue that the mechanic’s lien foreclosure

counterclaim by Welty against Indy Fedreau was not a compulsory counterclaim, and we

see no reason why it would not be.

       Moreover, and more importantly, the established law in Indiana is that in a

mechanic’s lien foreclosure action, any and all parties with an interest in the property at

issue are necessary parties to the action. Potter v. Cline, 161 Ind. App. 349, 361, 316

N.E.2d 422, 429 n.7 (1974) (citing Demma v. Forbes Lumber Co., 133 Ind. App. 204,

220, 181 N.E.2d 253, 255 (1961)). Indiana Trial Rule 19(A) likewise requires the joinder

in any action of any party in whose absence “complete relief cannot be accorded among

those already parties,” or if the party “claims an interest relating to the subject of the

action” and the party’s absence may “as a practical matter impair or impede his ability to

protect that interest” or leave other parties “subject to a substantial risk of incurring

double, multiple, or otherwise inconsistent obligations . . . .” Pursuant to these principles,

Welty argues that the subcontractors, who themselves had filed mechanic’s lien notices

against the Fedreau/FBI property, had to be joined in the mechanic’s lien foreclosure

counterclaim against Fedreau for there to be a proper adjudication of the foreclosure.

Again, the subcontractors make no counterargument on this point. Thus, it is clear that

                                             13
Welty did not “elect” to sue the subcontractors without first engaging in mediation or

arbitration, nor did it voluntarily “institute” a legal proceeding, to use the language of

Article 37 of the subcontract. Welty’s hand was forced by Fedreau’s filing of the lawsuit

against it, at which time Welty was compelled to countersue for foreclosure of its

mechanic’s lien and to name the subcontractors as co-defendants on that claim.

       The facts of this case are very similar to those addressed by our supreme court in

MPACT. In that case, a general contractor was involved in multi-party litigation with its

subcontractors and the property owner, including actions for the foreclosure of various

mechanic’s liens; the general contractor had not initiated the lawsuit. After about six

months of “preparing for litigation,” the general contractor moved to compel arbitration

pursuant to its contracts with the property owner and the subcontractors. MPACT, 802

N.E.2d at 904. In assessing whether the general contractor waived the right to arbitrate

its disputes with its subcontractors by actively participating in litigation, our supreme

court clearly stated, “The filing of counterclaims and cross-claims does not always

indicate active participation in litigation.” Id. at 910. Rather, “[a] party should not be

held to have waived its right to arbitrate when, in response to a complaint filed against it,

it raises counterclaims in order to preserve them.” Id. at 910-11. The court also noted

that the general contractor had stated in its original answer that it was not waiving its

right to arbitration and that it had never filed a motion to dismiss or for summary

judgment before asserting its right to arbitration. Id. at 911. The court concluded,



                                             14
“[t]hese facts show that [the general contractor] acted consistently with its right to

arbitrate . . . .”8 Id.

        Here, Welty named the subcontractors as necessary co-defendants in its

mechanic’s lien foreclosure compulsory counterclaim against Fedreau and in the closely-

related declaratory judgment count of the counterclaim, which likewise requested

foreclosure of the mechanic’s lien. The counterclaim expressly asserted that Welty was

naming the subcontractors as co-defendants “for the sole purpose of permitting [them] to

assert their interest in the Property, and without waiving Welty’s contractual right to

mediation and arbitration . . . .” App. at 170. It does not appear that any substantive

activity or discovery took place in the case before Welty filed its initial motion to stay the

proceedings for purposes of mediation and/or arbitration, which was filed before even all

of the subcontractors had filed answers to Welty’s counterclaim. Welty has never filed

any dispositive motions before the trial court, nor can the subcontractors direct us to any

unfavorable ruling to which Welty was subjected before it moved to stay the

proceedings.9

        Welty also has consistently and timely invoked its right to mediation and/or

arbitration, whether in the present lawsuit or in the earlier-filed lawsuit by Elbrecht. It


8
  We acknowledge that this analysis in MPACT may actually be dicta, in that the court had already
concluded that the general contractor did not have a contractual right to arbitration of disputes with its
subcontractors. Regardless, we assume our supreme court would not have engaged in this analysis of the
waiver issue if it did not believe it was legally sound.
9
  Although the subcontractors argue that Welty is attempting a “second bite at the apple” by seeking
arbitration in this case, they do not direct us to the first bite Welty supposedly took.
                                                   15
did in fact engage in mediation with Elbrecht and Gate pursuant to that first lawsuit. It

was engaged in negotiations with Leach & Russell regarding possible mediation,

although that negotiation happened to lead to an informal meeting first. On April 25,

2012, Welty clearly indicated in a letter to all the subcontractors that it intended to pursue

arbitration. It is true that Welty may not have always acted instantaneously in invoking

its right to arbitration, as evidenced by its February 21, 2012 letter to Elbrecht stating

after the failed mediation that it had not yet decided whether to pursue arbitration. We do

not believe Welty was required to instantly decide whether to proceed with arbitration,

and the letter also clearly did not reject Welty’s right to arbitrate.

       The subcontractors do urge that the declaratory judgment count of Welty’s

counterclaim was a direct suit against them that did more than merely name them as

nominal defendants. They direct us to the language of the count requesting that all co-

defendants, which would include the subcontractors, “be required to set forth their

various claims or be forever barred . . . .” App. p. 172. This statement, however, came in

the context of a mere restatement of the earlier request that Welty’s mechanic’s lien be

foreclosed. We believe it is clear that “forever barred” in the declaratory judgment count

requests only that the subcontractors’ claims with respect to their mechanic’s liens

against Fedreau’s property be forever barred if they did not participate in the action, not

that any claims the subcontractors may have against Welty would be forever barred. We

also disagree with the subcontractors’ assertion that the filing of the declaratory judgment

count was a “dispositive motion.” It was only an initial pleading, not a motion to

                                               16
dismiss, or for judgment on the pleadings, or for summary judgment, or any other motion

that might immediately terminate litigation.

       The subcontractors also argue that Welty should have sought mediation before the

litigation in this case ensued because, essentially, Welty was aware that it owed money to

the subcontractors that it was unwilling to pay, as a result of its ongoing dispute with

Fedreau. Welty’s failure to invoke mediation or arbitration at any time before the present

action arose, which it did not initiate but that it was compelled to join, was not a waiver

of a right to arbitrate. Rather, this case is akin to Safety Nat’l Cas. Co. v. Cinergy Corp.,

829 N.E.2d 986 (Ind. Ct. App. 2005), trans. denied. In that case, an insurer failed to

respond to five letters from its insured over a one-and-a-half year period notifying it of a

pending lawsuit and requesting coverage.            Two months after the insured filed a

declaratory judgment action against the insurer, the insurer requested arbitration pursuant

to the insurance policy. We held that the insurer’s earlier failure to respond to the five

letters from the insured did not constitute a waiver of the right to arbitrate, concluding

that mere silence by the insurer did not constitute waiver. Safety Nat’l Corp., 829 N.E.2d

at 1004-05. Here, similarly, Welty failed to pay the subcontractors’ submitted bills, but it

never gave any indication that it was going to waive its right to insist upon alternative

dispute resolution in the event of litigation. Finally, we believe that to the extent the

subcontractors believed Welty erred or violated the subcontract by not seeking mediation

before arbitration, their remedy would be to insist upon such mediation between them and

Welty. The subcontractors, however, are not currently insisting upon mediation with

                                               17
Welty. In other words, Welty is now insisting upon arbitration, the subcontractors are

insisting upon litigation, and no one is asking for mediation.10

        The subcontractors also contend that Welty is utilizing Article 37 of the

subcontract as a tactic to delay making payment to them. Even if that is true, it is unclear

what relevance that should have in this case. Welty’s conduct throughout has been

consistent with its right to insist upon arbitration.            Additionally, whether Welty is

rightfully delaying making payment to the subcontractors goes to the very heart of the

merits of this case. And, that is a matter for an arbitrator or arbitrators to decide. We

further observe that whether Welty is required to make immediate payment to the

subcontractors on their bills under the subcontract is a legally separate and distinct issue

from whether Welty is or was required by the Welty-Fedreau contract to keep Fedreau’s

property free and clear of any mechanic’s liens. Although those liens may have been

related to the subcontractors’ unpaid bills, Welty could have discharged those liens

without paying the subcontractors, for example by posting a bond, as noted in Fedreau’s

complaint.

        In sum, we conclude Welty’s conduct here has been very unlike conduct courts

have found in other cases to constitute a waiver of the right to arbitration. See, e.g., St.

Mary’s Med. Ctr. of Evansville, Inc. v. Disco Aluminum Prods. Co., 969 F.2d 585, 588

(7th Cir. 1992) (finding waiver where party requesting arbitration waited ten months after

commencement of lawsuit to request arbitration and did not do so until after filing motion
10
   We thus offer no opinion regarding whether the parties could now be compelled to submit to mediation,
if any party requested it.
                                                  18
to dismiss or for summary judgment and losing); Tamko Roofing Prods., Inc. v.

Dilloway, 865 N.E.2d 1074, 1079-80 (Ind. Ct. App. 2007) (finding waiver where party

waited until after plaintiff presented evidence during trial to seek arbitration); JK Harris

& Co., LLC v. Sandlin, 942 N.E.2d 875, 884-85 (Ind. Ct. App. 2011) (finding waiver

where party requesting arbitration never participated in litigation and waited until after

default judgment was entered against it to claim arbitration right), trans. denied. And,

according to the United States Supreme Court, we must resolve any doubts here

regarding waiver of the right to arbitration against finding such a waiver. See Moses H.

Cone Mem’l Hosp., 460 U.S. at 24-25, 103 S. Ct. at 941. As such, we conclude Welty

has not waived its right to insist upon arbitration of the claims against it filed by the

subcontractors, and the trial court erred in concluding otherwise.

       Of course, requiring arbitration of the claims between Welty and the

subcontractors will result in a certain amount of piecemeal litigation of this case. The

subcontractors also invoke the specter of inconsistent results between the arbitrable and

non-arbitrable issues in this case.     Regardless, the FAA requires enforcement of

arbitration agreements, even if the result is piecemeal litigation and “notwithstanding the

presence of other persons who are parties to the underlying dispute but not to the

arbitration agreement.” Id. at 20, 103 S. Ct. at 939. To the extent arbitration of issues

between Welty and the subcontractors could affect the remainder of the litigation in this

case, the trial court would have the discretion under the FAA to stay that remainder

pending arbitration after inquiring into “‘the risk of inconsistent rulings, the extent to

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which parties will be bound by the arbitrators’ decision, and the prejudice that may result

from the delays.’” Volkswagen of America, Inc. v. Sud’s of Peoria, Inc., 474 F.3d 966,

972 (7th Cir. 2007) (quoting AgGrow Oils, L.L.C. v. Nat’l Union Fire Ins. Co. of

Pittsburgh, 242 F.3d 777, 783 (8th Cir. 2001)). But a trial court does not have the

discretion to refuse to enforce an arbitration agreement where there has been no waiver of

the right to arbitrate. See id. at 971; see also KPMG LLP v. Cocchi, -- U.S. --, 132 S. Ct.

23, 24 (2011).

           On that note, we again observe that OFIC is not a party to the arbitration

agreement in the subcontracts, and it has not provided us with an argument as to how or

why it should be entitled to the benefit of that agreement. On appeal, in Welty and

OFIC’s joint reply brief, only Welty requests that the subcontractors’ claims against it be

submitted to arbitration. We reverse the trial court’s denials of the motions to stay and to

compel arbitration and remand with instructions that arbitration be ordered between

Welty and the subcontractors and that the litigation between those parties be stayed. As

for OFIC, it still asserts that the subcontractors’ claims against it should be stayed

pending arbitration. The trial court did not assess whether such a stay only as to OFIC

should be ordered; we remand for the trial court to consider that issue, in light of the

principles discussed in the previous paragraph.11




11
     Fedreau had not, at the time of this appeal, moved to stay any part of the proceedings as to it.
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                                       Conclusion

       Welty did not waive its right to insist upon arbitration of its disputes with the

subcontractors.   We reverse and remand for arbitration between Welty and the

subcontractors, and for the trial court to assess whether the litigation between OFIC and

the subcontractors should be stayed pending that arbitration.

       Reversed and remanded.

BAKER, J., and RILEY, J., concur.




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