                  IN THE SUPREME COURT OF MISSISSIPPI

                           NO. 2002-M-00048-SCT

IN RE: TYCO INTERNATIONAL (US) INC.,
ADT AUTOMOTIVE INC., ADT SECURITY SVCS,
INC., MS AUTO AUCTION, INC., BILL
BENTON, JUDY TAYLOR AND ANGIE TAYLOR


                          CONSOLIDATED WITH

                           NO. 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


DATE OF JUDGMENT:                 09/23/2003
TRIAL JUDGE:                      HON. ROBERT H. WALKER
COURT FROM WHICH APPEALED:        JONES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:          E. GREGORY SNOWDEN
ATTORNEYS FOR APPELLEES:          FRED L. BANKS, JR.
                                  JOHN W. ROBINSON
                                  DEBRA M. BROWN
NATURE OF THE CASE:               CIVIL - CONTRACT
DISPOSITION:                      REVERSED AND REMANDED - 08/18/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



     BEFORE WALLER, P.J., GRAVES AND RANDOLPH, JJ.

     RANDOLPH, JUSTICE, FOR THE COURT:
                                    STATEMENT OF THE CASE

¶1.     On June 28, 2000, Aaron D. Williams d/b/a Williams Auto Sales (“Williams”) filed a

complaint against Tyco International (US) Inc. (“Tyco”); ADT Automotive, Inc. d/b/a

Mississippi Auto Auction, Inc. (“MAA”); ADT Security Services, Inc. (“ADT Security”); Bill

Benton (“Benton”),1 both in his individual capacity and as agent; Judy Taylor,2 both in her

individual capacity and as agent; Angie Taylor,3 both in her individual capacity and as agent

(collectively “Tyco defendants”);        Robinson-Adams Insurance, Inc. d/b/a Auction Insurance

Agency (“Robinson-Adams”); and Thomas J. Adams, Jr. (“Adams”),4 both in his individual

capacity and as agent (collectively “Robinson-Adams defendants”), in the Circuit Court of the

Second Judicial District of Jones County, Mississippi.5

¶2.     On July 31, 2000, in response to Williams’s complaint, 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.

¶3.     On September 15, 2000, Williams propounded discovery requests upon Benton and

Judy Taylor, and thereafter propounded discovery requests upon the Robinson-Adams

defendants on September 26, 2000.




        1
            Mississippi Auto Auction, Inc.’s Credit Manager.
        2
            Mississippi Auto Auction, Inc.’s General Manager.
        3
            Mississippi Auto Auction, Inc.’s Business Manager.
        4
            Robinson-Adams’ Agent.
        5
            Williams also named as defendants John or Jane Does 1-20.

                                                    2
¶4.     On October 1, 2000, before either of the two motions filed by the Tyco defendants

were ruled upon, the Tyco defendants filed a motion for stay of discovery, arguing that

“[p]roceeding with discovery before these determinations are made would not be prudent, as

it will only risk wasting the time and resources of the Court, especially since the parties to this

action may be dismissed, the case transferred, or the instant Court recused.”

¶5.     A hearing was conducted on November 14, 2000, on the Tyco defendants’ motion to

recuse and motion to dismiss, or in the alternative, to transfer venue.          Subsequently, on

December 8, 2000, Circuit Judge Billy Joe Landrum entered an order denying the Tyco

defendants’ motions.

¶6.     In response to the denial of their motions, the Tyco defendants filed a motion for

reconsideration or, alternatively,     for certification of issues for interlocutory appeal on

December 29, 2000.       On that same day, the Tyco defendants also filed a: (1) supplement to

defendants’ motion to recuse and (2) motion for stay of proceedings pending adjudication of

defendants’ motions for reconsideration, supplement to motion to recuse, and for certification

and petition of issues for interlocutory appeal.       Responding to the Tyco defendants’ motion,

Williams filed response including memorandum of law in opposition on February 22, 2001.

Thereafter, the trial court denied the Tyco defendants’ motion for reconsideration on February

27, 2001, and ordered the Tyco defendants to respond to Williams’s discovery requests within

twenty days from the date of the order.

¶7.     Subsequently, on March 14, 2001, approximately nine months following the filing of

Williams’s complaint, the Tyco defendants filed their joint answer and defenses, wherein they

asserted as a fourth affirmative defense: “The plaintiff is bound to arbitrate the matters alleged


                                                   3
in the complaint against Defendants herein and accordingly, the complaint should be

dismissed.”    The arbitration agreement was not attached to the Tyco defendants’ answer and

defenses, or otherwise filed.

¶8.     On March 19, 2001, the Tyco defendants responded to discovery requests as ordered

by the trial court.

¶9.     Although denying the Tyco defendants’ motion for reconsideration, the circuit judge

did not rule on their request for certification of the recusal and venue issues for interlocutory

appeal. When subsequent requests for a ruling by the Tyco defendants yielded no results, they

filed a petition for extraordinary writ of prohibition and/or mandamus in this Court on January

9, 2002, seeking to require the circuit judge to rule on the motion for certification of issues

for interlocutory appeal or to recuse himself.   Ultimately, on June 13, 2002, this Court granted

the Tyco defendants’ petition, thereby requiring Judge Landrum to recuse himself from further

participation in the proceedings.    In accordance with this Court’s order, on June 18, 2002,

Judge Landrum executed an order recusing himself.6

¶10.    On July 3, 2002, this Court appointed Honorable Robert I. Prichard, III, as Special

Circuit Court Judge to preside over the case, but Judge Prichard recused himself by order

executed on July 29, 2002.          Consequently, this Court appointed Honorable Robert Harry

Walker to preside on August 15, 2002.




        6
          This Court initially denied the Tyco defendants’ emergency motion for stay of
proceedings and ordered Judge Landrum, Williams, and the Robinson-Adams defendants to
file responses to the petition by order dated May 23, 2002.

                                                 4
¶11.    Pursuant to his appointment, Judge Walker conducted a telephonic conference call with

the parties’ counsel, and thereafter issued a notice of trial on November 18, 2002, setting the

cause for trial on September 29, 2003.

¶12.    Williams contemporaneously prepared and circulated for signature a proposed order

setting the case for a jury trial on September 29, 2003, and establishing a schedule for the

proceedings,7 which the Tyco defendants’ attorneys signed as “Agreed and Approved.”8

¶13.    On August 4, 2003, the parties agreed to an amended order setting the case for a jury

trial and establishing an amended schedule for proceedings, which extended discovery for one

month until August 1, 2003, and extended the time for filing pre-trial dispositive motions for

twenty days until August 15, 2003.

¶14.    On February 18, 2003, the Robinson-Adams defendants filed its designation of experts,

and on February 21, 2003, the Tyco defendants joined in the Robinson-Adams defendants’

designation.

¶15.    On June 11, 2003, Williams was deposed pursuant to notice issued by the Robinson-

Adams defendants. The Tyco defendants’ counsel made an appearance at the deposition. On

June 30, 2003, Williams noticed the depositions of the Tyco individual defendants9 and the



        7
         The proposed scheduling order included procedural deadlines for the following:
designation of expert witnesses (January 13, 2003 for plaintiff, and February 14, 2002 for
defendants); conclusion of discovery (July 1, 2003); and filing all pre-trial dispositive
motions (July 25, 2003).
        8
          Although the agreed order does not appear in the record because of the inadvertent
non-filing in the trial court and may not have even been presented to Judge Walker for
entry, the parties do not dispute this agreement.
        9
            Judy Taylor, Angie Taylor, and Benton.

                                                     5
Tyco corporate defendants. 10        Although the depositions of the Tyco individual defendants were

taken, 11 the Tyco defendants objected to the taking of the Tyco corporate defendants’

depositions.

¶16.    On September 2, 2003, over three years subsequent to the filing of Williams’s

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.12 Subsequently, on September 16, 2003, the Tyco defendants

filed a supplement to motion for stay of proceedings and to compel arbitration.

¶17.    Following a hearing, Judge Walker entered an order granting the Tyco defendants’

motion for stay of proceedings and to compel arbitration on September 24, 2003.

¶18.    On October 8, 2003, Williams filed a motion for reconsideration, to amend or alter

judgment, or in the alternative, for Rule 54(b) certification. In opposition, the Tyco defendants

filed a response to Williams’s motion.          During the period in which Williams’s motion was

pending, the trial court entered orders granting summary judgment in favor of the Robinson-

Adams defendants on October 22, 2003.                Additionally, the trial court granted Williams’s

motion for an extension of time to file a notice of appeal.           Subsequently, on November 24,




        10
             Tyco, MAA, and ADT Security.
        11
             Benton’s deposition was not taken because of illness.
        12
            ADT Security Services, Inc. did not join in this motion because of its reliance
upon Williams’s prior agreement to voluntarily dismiss it from the case. However,
although the order of dismissal was forwarded to counsel for Williams, who acknowledged
its receipt, it was never executed on Williams’s behalf and entered by the Court.

                                                     6
2003, the trial court denied Williams’s motion for reconsideration, to amend or alter

judgment, or in the alternative, for Rule 54(b) certification.

¶19.      The grant or denial of a motion to compel arbitration is reviewed de novo. Tupelo Auto

Sales, Ltd. v. Scott, 844 So. 2d 1167, 1169 (Miss. 2003) (citing East Ford, Inc. v. Taylor,

826 So. 2d 709, 713 (Miss. 2002) and Webb v. Investacorp. Inc., 89 F.3d 252, 256 (5th Cir.

1996)).     Here, Williams appeals the order granting the Tyco defendants’ motion for stay and

proceedings and to compel arbitration and raises the following issues:

          I. Whether the trial court erred in finding that plaintiff/appellant agreed to
          arbitrate the claims that are the subject of this litigation, i.e., whether there
          exists a valid agreement to arbitrate the claims presented to the court.

          II. Whether the trial court erred in finding that the nature of the claims
          presented to the court were within the scope of the purported arbitration
          language of the Dealer Registration Agreement relied upon by the Tyco
          defendants.

          III. Whether the trial court erred in finding that the purported arbitration
          language may be asserted at all by the non-signatory Tyco defendants in light of
          the fact that the entity purportedly protected by the Dealer Registration
          Agreement no longer has any corporate existence whatsoever, and the remaining
          Tyco defendants have made no showing as to their legal entitlement to assert the
          purported arbitration rights of a defunct entity.

          IV. Whether the trial court erred in finding that the Tyco defendants had not
          expressly waived any right to compel arbitration by their having twice
          specifically agreed and consented to a jury trial of the action which was
          scheduled to begin on September 29, 2003.

          V. Whether the trial court erred in finding that the Tyco defendants had not
          impliedly waived any right to compel arbitration through their active
          participation in the litigation.

          VI.      Whether the Tyco defendants impliedly waived any right to compel
          arbitration through their excessive delay in making any demand therefor.




                                                      7
        VII. Whether the Tyco defendants waived any right to compel arbitration by
        virtue of the applicable provisions of the Mississippi Rules of Civil Procedure
        through their failure to include their demand for arbitration in their Rule 12
        motions heard and determined by the court in November, 2000.

¶20.    As issues IV-VI are dispositive of this appeal, this Court declines to address the

remaining issues.

                                              FACTS

¶21.    Williams is a used automobile dealer in Waynesboro, Mississippi, and owns Aaron

Williams Auto Sales. Williams has been in the business of buying and selling cars since 1997.

The primary source Williams utilizes for obtaining the used cars he sells is automobile

auctions. From 1997 until 1999, Williams attended MAA in order to purchase used cars that

he would resale to the public. To qualify to purchase cars at MAA, Williams was required to

register with MAA.     All dealers are required to execute a Dealer Registration Agreement (the

“Agreement”) before being allowed to purchase cars, and Williams signed the Agreement by

which he, among other things, agreed and acknowledged that:

        Any controversy or claim arising out of this Agreement or relating in any way
        to any transaction at Auction or otherwise in which Dealer engaged pursuant to
        this Agreement shall be finally settled by binding arbitration in accordance with
        the Commercial Arbitration Rules of the American Arbitration Association and
        judgment upon the award rendered by the Arbitrator(s) (which may include the
        costs of arbitration and reasonable attorneys’ fees to the prevailing party) may
        be entered in any court having jurisdiction thereof.

Williams also agreed and acknowledged by execution of the Agreement that the Agreement

“may be terminated by the Auction at any time with or without cause.”

¶22.    On or around July 1999, Williams, a regular patron of MAA, entered MAA’s premises

to participate in a weekly used car auction, but was informed that his business relationship with



                                                  8
MAA had been terminated. In his complaint, Williams, a Caucasian male, alleges that persons

employed by him that accompanied him to the auction were being systematically harassed,

mistreated or embarrassed by MAA personnel.        Furthermore, Williams alleges that when he

complained to MAA management about the treatment of his employees, a boisterous incident

erupted during which an MAA employee stated: “Hadn’t I told you about those damn n******

you got with you?” Following this incident, the same employee abruptly barred Williams from

conducting any further business at the        auction,   purportedly   basing   his   action   on

creditworthiness issues and stating that Williams “had been ko’d,” meaning that Williams’s

“name had appeared ‘in the ko book.’” Because Williams was unaware as to what the “ko book”

was, he inquired further, and he was informed that the “ko book” contained names of persons

who “had written bad checks to auctions or had drafts to auctions returned, or [who] owed

money to auctions [and] hadn’t paid.”       The so-called “ko book,” which is published by

Robinson-Adams, allegedly identified Williams as a “supposed undesirable potential auto

dealer [patron] of auto auctions.”

¶23.    However, Williams alleges that it was not the “ko book” listing regarding his previous

transactions that caused the MAA to ban his participation, but rather because he “regularly

employs African-Americans,” and “[MAA] didn’t like the companionship [Williams] had with

his black associates and employees.”

                                        DISCUSSION

¶24.    Williams asserts 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 claims that


                                               9
the Tyco defendants expressly waived their right to arbitration because they did so twice in

writing via: (1) an order setting the case for jury trial and establishing a scheduling order for

the proceedings and (2) an amended order setting the case for jury trial and establishing a

scheduling order for the proceedings, which was signed as agreed and approved by counsel for

the Tyco defendants and extended discovery for one month and the date for filing pre-trial

dispositive motions for twenty days.

¶25.    The Tyco defendants assert that because they raised arbitration in their answer and their

participation in “actual litigation” was “extremely limited,” they have not waived their right to

arbitration, although the record belies the same.

¶26.    A time line of the pertinent occurrences is helpful:

        June 28, 2000–the complaint was filed by Williams;

        July 31, 2000–the Tyco defendants filed a motion to recuse the trial judge and
        also a motion to dismiss on Rule 12(b)(3), or in the alternative, to transfer
        venue;

        September 15, 2000–Williams propounded discovery requests upon Benton and
        Judy Taylor;

        October 1, 2000–the Tyco defendants filed a motion for stay of discovery;

        November 14, 2000–a hearing was held on Tyco defendants’ motion to recuse
        and motion to dismiss, or in the alternative, to transfer venue;

        December 8, 2000–Circuit Judge Billy Joe Landrum entered an order denying
        the Tyco defendants’ motions;

        December 29, 2000–in response to the order denying their motions, the Tyco
        defendants filed a motion for reconsideration, or alternatively, sought
        certification of issues for interlocutory appeal;

        December 29, 2000–the Tyco defendants filed a supplement to their motion to
        recuse;


                                                    10
December 29, 2000–the Tyco defendants filed a motion for stay of proceedings
pending adjudication of their motions for reconsideration, supplement to their
motion to recuse, and for certification and petition for interlocutory appeal;

February 27, 2001–Judge Landrum denied the Tyco defendants’ motion for
reconsideration and ordered them to respond to Williams’s discovery responses
within twenty days, although Judge Landrum did not rule on their motion for
certification and petition for interlocutory appeal;

March 14, 2001–approximately nine months following the filing of Williams’s
complaint, the Tyco defendants filed their joint answers and defenses, wherein
they asserted as a fourth defense: “The plaintiff is bound to arbitrate the matters
alleged in the complaint against Defendants herein and accordingly, the
complaint should be dismissed,” although no copy of a written arbitration
agreement was attached or filed with the answers and defenses;

March 19, 2001–the Tyco defendants responded to Williams’s discovery
requests;

January 9, 2002–the Tyco defendants filed a petition for extraordinary writ of
prohibition and/or mandamus seeking to require Judge Landrum to rule on their
motion for certification of issues for interlocutory appeal or to recuse himself;

June 13, 2002–this Court granted the Tyco defendants’ motion to require Judge
Landrum to recuse;

June 18, 2002–Judge Landrum enters a recusal order;

July 3, 2002–this Court appointed the Honorable Robert I. Prichard, III, as
Special Circuit Court Judge to preside over the case;

July 29, 2002–Judge Prichard recused himself;

August 15, 2002–this Court appointed the Honorable Robert Harry Walker;

November 18, 2002–following a telephonic conference with parties’ counsel,
Judge Walker issued a notice of trial, setting the trial for September 29, 2003;

date unknown–following the telephonic conference, Williams prepared and
circulated for signature a proposed order setting the case for a jury trial, and
establishing a scheduling order, which the Tyco defendants signed as “Agreed
and Approved”;



                                        11
        February 21, 2003–the Tyco defendants joined in the             Robinson-Adams
        defendants’ designation of experts of February 18, 2003;

        June 11, 2003–Williams was deposed pursuant to notice by the Robinson-
        Adams defendants and Tyco defendants’ counsel attended the deposition;

        June 30, 2003–Williams noticed depositions of Tyco individual and corporate
        defendants;

        August 4, 2003–an order was entered stating that the parties “Agreed and
        Approved” to an amended order regarding setting the case for jury trial and
        establishing a second scheduling order, which extended discovery for one month
        and the time for filing pre-trial dispositive motions for twenty days;

        August 21, 2003–the Tyco defendants filed objections only to the taking of the
        Tyco corporate defendants’ depositions;

        September 2, 2003–the Tyco defendants first moved for stay of proceedings
        and to compel arbitration, which was over 3 years after the filing of Williams’s
        complaint, only approximately 3 weeks before trial was to begin, and after the
        discovery and pre-trial dispositive motions deadlines had passed;

        September 16, 2003–the Tyco defendants filed a supplement to motion for stay
        of proceedings and to compel arbitration;

        September 16, 2003–a hearing was held on Tyco defendants’ motion, following
        which, Judge Walker advised he would sustain the Tyco defendants’ motion; and

        September 24, 2003–three days before the jury trial was to begin, Judge Walker
        entered an order sustaining the Tyco defendants’ motion for stay of proceedings
        and to compel arbitration.

¶27.    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.” Cox v. Howard,

Weil, Labouisse, Friederichs, Inc., 619 So. 2d 908, 913-14 (Miss. 1993). “Taking advantage

of pre-trial litigation such as answers, counterclaims, motions, requests, and discovery

obviates the right to arbitration.” Id. at 914.




                                                  12
¶28.    In University Nursing Associates, PLLC v. Phillips, 842 So. 2d 1270, 1276-77 (Miss.

2003), we again acknowledged that a party attempting to invoke arbitration may effectively

waive that right if the party actively engages in litigation (citing Cox, 619 So. 2d at 914).

Likewise, in Phillips, we acknowledged that “[w]aiver will be found when the party seeking

arbitration substantially invokes the judicial process to the detriment or prejudice of the

other party.” Id. at 1278 (citing Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324, 326

(5th Cir. 1999); Miller Brewing Co. v. Fort Worth Distrib. Co., 781 F.2d 494, 497 (5th Cir.

1986)). Finally, in Phillips, we issued this caveat:     “As a practice note, parties desiring to

seek arbitration should promptly file and present to the trial court a motion to stay

proceedings and a motion to compel arbitration.” 842 So.2d at 1277.

¶29.    More recently, Justice Carlson writing for the Court, addressed waiver again. See Pass

Termite & Pest Control, Inc. v. Walker, 904 So. 2d 1030, 1034-35 (Miss. 2004). In Pass

Termite, Joe and Carolyn Walker (collectively “the Walkers”) brought an action against Pass

Termite & Pest Control, Inc. (“Pass”), a pest control company, for fraud and breach of contract

after they purchased a home following a pest inspection. Id. at 1031-32. Pass filed its answer,

but failed to affirmatively plead arbitration as a defense to the Walker’s claim.             Id.

Additionally, Pass demanded a jury trial and that judgment be entered in its favor.           Id.

Subsequently, Pass propounded interrogatories and requests for production of documents on

the Walkers, and 237 days later, filed a motion to compel the Walkers to arbitrate, although

did not request leave to amend its answer in order to assert the affirmative defense of

arbitration.   Id.   Responding to Pass’s motion, the Walkers asserted that Pass had “waived its



                                                13
right to claim any entitlement to arbitration in [the] cause” because of Pass’s failure to

affirmatively plead arbitration in its answer and had availed itself of the discovery process. Id.

The trial court issued an order denying Pass’s motion to compel arbitration. Id. at 1032. On

interlocutory appeal, this Court affirmed the judgment of the trial court stating:

                 In the instant case, Pass not only failed to file a motion to compel
        arbitration and failed in its answer to allege the affirmative defense of
        arbitration, it went so far in its answer as to request that the dispute be tried
        before a jury. A jury trial is characteristic of the judicial process, not
        arbitration. That request is inconsistent with asserting a right to arbitration.
        This coupled with the fact that Pass invoked the discovery process indicates its
        intent to forgo its right to arbitration.

                 We can comfortably distinguish the above cited Fifth Circuit cases
        [(Walker v. J.C. Bradford & Co., 938 F.2d 575 (5th Cir. 1991) and Tenneco
        Resins, Inc. v. Davy Int’l, AG, 770 F.2d 416, 420 (5th Cir. 1985))] and our
        cases from the case sub judice.          The 237-day delay before invoking
        arbitration, coupled with the invocation of the discovery process after failing
        to raise the defense of arbitration in its initial pleading bring us to our
        conclusion that Pass has effectively waived its right to invoke arbitration. Stated
        differently, when a party, with full knowledge of the existence of an
        arbitration clause in the contract which is the subject matter of the litigation,
        makes a conscious decision to proceed with responding to the lawsuit,
        demanding a jury trial, and invoking discovery only to thereafter invoke the
        arbitration clause, that party does so at its own peril, and prejudice to the
        non-moving party will be presumed for failure to comply with the provisions
        of Miss. R. Civ. P. 8(c). In so holding, we are satisfied without doubt that
        today's decision in no way does violence to the federal law and our state law
        favoring arbitration.

                 This Court has acknowledged and adopted the federal policy favoring
        arbitration. See generally McKenzie Check Advance of Miss., LLC v. Hardy,
        866 So. 2d 446 (Miss. 2004); Sanderson Farms, Inc. v. Gatlin, 848 So. 2d 828
        (Miss. 2003); Wilson v. Greyhound Bus Lines, Inc., 830 So. 2d 1151 (Miss.
        2002). It is well-settled that this Court adheres to federal policy favoring
        arbitration.

              However, there are several rationales behind today’s decision. Primarily,
        by making a clear statement as to when the right to arbitration ordinarily should
        be pled, we eliminate any uncertainty that may plague future litigation.

                                                     14
        Certainty during litigation favors this Court’s effort to ensure judicial
        efficiency and the expeditious resolution of disputes. Further, this approach
        creates an incentive for parties to be more diligent in submitting defenses.
        The result of such an incentive is that the trend will now be that trial courts will
        learn early on in the life of a civil case about the existence of arbitration
        agreements and be able to more quickly dismiss disputes which our trial courts
        find to be controlled by arbitration clauses.

904 So. 2d at 1035 (emphases added) (internal footnotes omitted).             Importantly, in Pass

Termite, this Court stated that the inclusion of the defense of arbitration in an answer is not

determinative, but rather is “a factor we may consider along with the other facts existing in

[the] case.” Id. at 1033.

¶30.    In a case involving interstate commerce and therefore the Federal Arbitration Act, we

have held that a right to arbitrate was waived when the party requesting arbitration had

“participated in almost every aspect of litigation” and made “extensive use of various modes

of pre-trial litigation.”   Cox, 619 So. 2d at 913 (citing Price v. Drexel Burnham Lambert,

Inc., 791 F.2d 1156 (5th Cir. 1986)). In Cox, the party demanding arbitration filed an answer

and counterclaim, a motion for summary judgment, argued the motion for summary judgment,

requested two continuances, filed an interlocutory appeal, and requested various types of

discovery. 619 So. 2d at 914.

¶31.    This Court has stated:

        “Congress’ clear intent, in the Arbitration Act, [was] to move the parties to an
        arbitrable dispute out of court and into arbitration as quickly and easily as
        possible.” Moses H. Cone Mem'l Hosp. v. Mercury Constr. Co., 460 U.S. 1,
        24, 103 S. Ct. 927, 941, 74 L. Ed. 2d 765 (1983) (quoted with favor in Miller
        Brewing, 781 F.2d at 496). In Miller Brewing, Fort Worth Distributing
        Company first sued Miller Brewing, and then, three and a half years later, after
        losing in court, sought arbitration. The Fifth Circuit held Miller Brewing could
        “hardly be seen as moving the parties into arbitration ‘as quickly and easily as
        possible.’” Id. at 497.

                                                15
Phillips, 842 So. 2d at 1278 (emphasis added).

¶32.    In the case sub judice, we find that 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.        Williams makes a compelling argument regarding the

Tyco defendants’ motion to recuse:

        Why, one reasonably might ask, did the Tyco defendants expend all of the time,
        energy and expense involved in their two-year crusade to recuse the trial judge
        (ostensibly to maintain their right to a “fair trial”) if, as Tyco now contends, they
        never had any obligation to go to trial in the first place? Any argument that such
        a course of action was legally necessary to preserve (i.e., and not to waive) their
        right to have a newly-appointed judge to rule on dispositive matters is wholly
        disingenuous–after all, Tyco never hesitated to present other potentially
        dispositive motions before Judge Landrum for decision, not to mention two
        separate motions requesting the trial court to order a stay.

(Internal citations omitted) (emphasis in original).

¶33.    The Tyco defendants took other actions inconsistent with the right to arbitrate,

including : (1) filing a motion for stay of discovery; (2) attending a hearing on their motion to

recuse and motion to dismiss, or in the alternative, to transfer venue (seeking a separate

judicial non-arbitration forum); (3) filing a motion for reconsideration, or alternatively, for

certification of issues of interlocutory appeal; (4) filing a supplement to their motion to

recuse; (5) filing a motion for stay of proceedings pending adjudication of their then-pending

motions; (6) filing a petition for extraordinary writ of prohibition and/or mandamus; (7)


                                                       16
agreeing and executing an order setting the case for a jury trial with a scheduling order; (8)

agreeing and executing an amended order setting the case for a jury trial on September 29,

2003, extending discovery deadlines, and extending the time for filing pre-trial dispositive

motions; (9) joining in the Robinson-Adams defendants’ designation of experts; and (10)

attending depositions.

¶34.      The Tyco defendants did not file a motion to compel until less than one month prior to

the case going to trial by jury, an event which the Tyco defendants “Agreed and Approved.”

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.

                                              CONCLUSION

¶35.      We find that the excessive delay is contrary to the spirit and intent of the public policy

favoring arbitration.     The Tyco defendants sought the advantages accorded by the judicial

process, and by actively participating in numerous actions inconsistent with compelling

arbitration over the course of nearly 3 years, we find that the Tyco defendants clearly waived

their right to arbitrate Williams’s claims.

¶36.      Stated again, “Congress’ clear intent, in the Arbitration Act, [was] to move the parties

to an arbitrable dispute out of court and into arbitration as quickly and easily as possible.”

Moses H. Cone Mem'l Hosp., 460 U.S. at 24, 103 S. Ct. at 941, 74 L. Ed. 2d 765 (emphasis

added).     The Tyco defendants failed to take actions to move this case “out of court and into

arbitration as quickly and easily as possible.”    Consequently, we reverse the judgment of the




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Circuit Court of the Second Judicial District of Jones County, Mississippi, and remand this

case for proceedings consistent with this opinion on the merits vel non of Williams’s claims.

¶37.   REVERSED AND REMANDED.

     WALLER, P.J., EASLEY, CARLSON, GRAVES AND DICKINSON, JJ., CONCUR.
SMITH, C.J., CONCURS IN PART AND IN RESULT. COBB, P.J., CONCURS IN
RESULT ONLY. DIAZ, J., NOT PARTICIPATING.




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