Gerston v. Parma VTA, L.L.C.

[Cite as Gerston v. Parma VTA, L.L.C., 2020-Ohio-3455.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

KIMBERLEE A. GERTSON, TRUSTEE
THE GERSTON FAMILY TRUST,
DATED NOVEMBER 20, 2002, ET AL. :

Plaintiffs-Appellees, :
No. 108823
v. :

PARMA VTA, L.L.C., ET AL. :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 25, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-14-829947

Appearances:

Goldberg Legal Co., L.P.A. and Steven M. Goldberg;
Richardson, Patrick, Westbook & Brickman, L.L.C. and
Karl E. Novak; Zagrans Law Firm, L.L.C. and Eric H.
Zagrans; and Miller, Canfield, Paddock and Stone, P.L.C.
and Conor T. Fitzpatrick , for appellees.

Walter Haverfield, L.L.P., Mark I. Wallach, and John P.L.
Mills, for appellants.
LARRY A. JONES, SR., J.:

Defendants-appellants, Allan Robbins (“Robbins”), Leah Robbins,

Parma VTA, L.L.C., and AKMS, L.P., appeal from the trial court’s July 12, 2019

judgment denying their motion for partial stay of proceedings. For the reasons set

forth below, we affirm.

PROCEDURAL AND FACTUAL HISTORY

For the purpose of this appeal, we set forth the following factual and

procedural background.

This a complex civil case that was initiated in 2014 by plaintiff-

appellee Kimberlee Gerston (“Kimberlee”), Trustee of the Gerston Family Trust

(“the Trust”), against the above-named defendants, as well as appellee Parma GE

7400. As will be discussed below, Parma GE 7400 eventually became a plaintiff in

this litigation.

The Trust was formed in 2002 under California laws by husband

Kenneth Gerston (“Gerston”) and wife Kimberlee. Each was designated as the

primary trustee, and in the event of the death of one of them, the survivor was to

continue to act as the primary trustee. Gerston died in 2010, and, thereafter,

Kimberlee assumed the role of primary trustee.

Prior to Gerston’s death, he and Robbins had been negotiating the

purchase of the centerpiece of this litigation ─ commercial property located at 7400

Broadview Road, Parma, Ohio. Gerston and Robbins formed companies for the sole

purpose of effectuating the sale; Gerston’s company was Parma GE 7400 and
Robbins’s company was Parma VTA. Robbins and Gerston entered into a Tenants-

in-Common Agreement (“TIC Agreement”), which set forth the terms of the

administration of the property and the nature of the parties’ relationship. Under the

TIC Agreement, Parma GE 7400 was the majority interest owner of the property.

Further, under the TIC Agreement “[a]ny controversy arising out of or related to this

Agreement or the breach thereof or an investment in the interests shall be settled by

arbitration in Cuyahoga County * * *.”

After Gerston’s death, ownership of Parma GE 7400 became an issue

and Kimberlee filed this action. In Count 1 of her complaint, Kimberlee sought a

declaratory judgment declaring the Trust to be the owner of Parma GE 7400. At the

defendants’ behest, the declaratory judgment portion of the case was bifurcated

from the rest of the case and was tried in a bench trial; the defendants did not

mention the possibility of arbitration. Their motion requested that the “issue of who

the owner of [Parma GE 7400] be decided first, and all claims flowing from that

determination ─ whether Plaintiff’s or Defendants’ ─ be bifurcated and tried

separately.”

At the conclusion of the bench trial on the declaratory judgment

portion of the case, the trial court found that the Trust was the majority legal owner

of Parma GE 7400. In June 2018, this court affirmed that ruling. Gerston v. Parma

VTA, L.L.C., 8th Dist. Cuyahoga No. 105572, 2018-Ohio-2185. More details about

the facts of this case are set forth in that opinion.
 On remand to the trial court, because of this court’s ruling, Parma GE

7400 transitioned from status as a defendant to joining Kimberlee as a plaintiff, and

on March 8, 2019, the plaintiffs (Kimberlee and Parma GE 7400) filed a

supplemental complaint. On April 11, 2019, the defendants-appellants filed an

answer, along with counterclaims, to the supplemental complaint. The answer

asserted numerous affirmative defenses, one of them being that some of the counts

of the supplemental complaint were subject to arbitration under the TIC Agreement;

it was the first time in the five years of litigation that the defendants mentioned the

arbitration provision.

On that same date, April 11, the defendants also filed the motion for

partial stay of proceedings, which is the subject of this appeal. In the motion, the

defendants contended that “Plaintiffs’ Supplemental Complaint, with the

participation of newly-realigned Plaintiff Parma GE 7400, has asserted claims which

are clearly subject to the mandatory arbitration provision contained in the [TIC

Agreement] between Plaintiff Parma GE 7400 L.L.C. and Defendant Parma VTA

L.L.C.” Although not directly at issue in this appeal, for full context it is important

to note that on April 5, 2019, the defendants filed a motion to compel arbitration on

another matter ─ a “cash call” that allegedly occurred between two of the parties ─

but the defendants withdrew the motion to compel on April 17, 2019.

The plaintiffs filed one brief in opposition to both of the above-

mentioned motions ─ the subject motion for partial stay of proceedings and the

April 5 motion to compel arbitration on the alleged “cash call” issue. The substance
of the plaintiffs’ opposition only went to the “cash call” matter, however. The trial

court summarily denied the defendants’ motion for partial stay of proceedings

without explanation. The defendants have raised the following sole assignment of

error for our review: “The Trial Court erred in denying Defendants’ Motion for

Partial Stay of Proceedings pending arbitration of five claims set forth in Plaintiffs’

Supplemental Complaint.”

LAW AND ANALYSIS

Standard of Review

The defendants contend that our standard of review is de novo, while

the plaintiffs contend that we review for an abuse of discretion. When reviewing a

challenge to an arbitration clause, the appropriate standard of review depends on

“the type of questions raised challenging the applicability of the arbitration

provision.” McCaskey v. Sanford-Brown College, 8th Dist. Cuyahoga No. 97261,

2010-Ohio-1543, ¶ 7. Generally, an abuse of discretion standard applies. Id., citing

Milling Away, L.L.C. v. UGP Properties, L.L.C., 8th Dist. Cuyahoga No. 95751, 2011-

Ohio-1103. Whether a party has waived the right to arbitrate a dispute is subject to

an abuse-of-discretion standard. Id. However, the issue of whether a party has

agreed to submit an issue to arbitration or questions of unconscionability are

reviewed under a de novo standard of review. Id. at ¶ 7-8, citing Shumaker v. Saks

Inc., 163 Ohio App.3d 173, 2005-Ohio-4391, 837 N.E.2d 393 (8th Dist.), and Taylor

Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12.
 As mentioned, the defendants sought the partial stay after this court’s

first decision in this case, which prompted one-time defendant Parma GE 7400 to

become aligned with Kimberlee as a plaintiff, and the plaintiffs to file a supplemental

complaint. At the trial-court level, the plaintiffs opposed the motion on four

grounds, all related to the “cash call” matter, which was not the subject of the motion

at issue.

Here on appeal, the plaintiffs do not contest that Parma GE 7400 and

Parma VTA agreed to arbitrate; nor do they contend that the arbitration agreement

was unconscionable. Rather, the plaintiffs contend that the defendants waived their

right to arbitrate. Because the defendants filed their withdrawal of their April 5

motion to compel on April 17, 2019, the same day plaintiffs filed their combined

opposition to the motion to compel and motion for partial stay, and the opposition

only went to the issue raised in the motion to compel, presumptively the trial court

did not rely on the grounds stated therein as a reason for denying the defendants’

motion for partial stay.

We therefore consider the issue as briefed by the parties on appeal ─

whether the defendants waived their right to arbitrate ─ and review for an abuse of

discretion: the waiver issue is usually a fact-driven issue and we will not reverse the

trial court’s decision absent a showing of abuse of discretion. Vining v. Logan

Clutch Corp., 8th Dist. Cuyahoga No. 108563, 2020-Ohio-675, ¶ 10.1

1Although appellate courts generally do not consider arguments raised for the first time
on appeal, Lycan v. Cleveland, 8th Dist. Cuyahoga Nos. 107700 and 107737, 2019-Ohio-
Analysis

Arbitration is a matter of contract and can be enforced unless

explicitly or implicitly waived. Bass Energy, Inc. v. Highland Hts., 193 Ohio App.3d

725, 2010-Ohio-2102, 954 N.E.2d 130, ¶ 33 (8th Dist.). Implicit waiver occurs when

a party fails to assert its rights or participates in the litigation “to such an extent that

its actions are ‘completely inconsistent with any reliance’ on this right, resulting in

prejudice to the opposing party.” Id., quoting General Star Natl. Ins. Co. v.

Adminstratia Asigurarilor De Stat, 289 F.3d 434, 438 (6th Cir.2002), and Gordon

v. OM Fin. Life Ins. Co., 10th Dist. Franklin No. 08AP-480, 2009-Ohio-814.

We are mindful, however, that there is a strong public policy that

favors arbitration of disputes; therefore, we do not lightly infer that a party who has

initiated litigation on a matter has waived the right to arbitration. Harsco Corp. v.

Crane Carrier Co., 122 Ohio App.3d 406, 414, 701 N.E.2d 1040 (3d Dist.1997). The

party contending that waiver occurred has a “heavy burden” of demonstrating that

the party requesting arbitration acted inconsistently with the right to arbitrate. U.S.

Bank v. Wilkens, 8th Dist. Cuyahoga No. 93088, 2010-Ohio-262, ¶ 32.

Some of the factors that courts consider in determining whether the

totality of the circumstances supports a finding of waiver include the following: (1)

whether the party seeking arbitration invoked the jurisdiction of the trial court by

filing a complaint, counterclaim, or third-party complaint without asking for a stay

3510, ¶ 32-33, because we do not know the ground on which the trial court based its
decision to deny defendants’ motion to stay, we consider plaintiffs’ waiver contention.
of proceedings; (2) the delay, if any, by the party seeking arbitration in requesting a

stay of proceedings or an order compelling arbitration; (3) the extent to which the

party seeking arbitration participated in the litigation, including the status of

discovery, dispositive motions and the trial date; and (4) any prejudice to the

nonmoving party due to the moving party’s prior inconsistent actions. Academic

Support Servs., L.L.C. v. Cleveland Metro. School Dist., 8th Dist. Cuyahoga No.

99054, 2013-Ohio-1458, ¶ 8.

Here, the underlying action was initiated by Kimberlee’s 2014

complaint. The plaintiffs contend that the defendants litigated the action for five

years without raising the arbitration provision of the TIC Agreement and, as such,

the “arbitration ship sailed long ago.” The defendants, on the other hand, contend

that the arbitration provision was not triggered until Parma GE 7400 was realigned

to be in an adversarial position with Parma VTA, at which time it promptly raised

arbitration.

We first look to the language of the TIC Agreement, which provides

in relevant part that, “[a]ny controversy arising out of or related to this Agreement

or the breach thereof or an investment in the interests shall be settled by arbitration

in Cuyahoga County * * *.” (Emphasis added.) The TIC Agreement was filed with

the original complaint, which repeatedly referenced the Agreement, and contained

claims based on it. For example, under Count 3 of the original complaint, Kimberlee

alleged that “[t]here is due and owing to [her] from the Defendants, jointly and
severally, an amount equal to all distributions that [she] should have received in

accord with the TIC Agreement * * *.”

One of the cases the defendants cite in this appeal is Cleveland-

Akron-Canton Advertising Cooperative v. Physician’s Weight Loss Ctrs. of Am.,

184 Ohio App.3d 805, 2009-Ohio-5699, 922 N.E.2d 1012 (8th Dist.). They rely on

Cleveland-Akron-Canton for the proposition that an arbitration clause cannot be

employed by a nonparty to the underlying agreement. That is, relative to this case,

that Kimberlee, who was the sole plaintiff until 2019, was not a party to the TIC

Agreement and, therefore, could not have been bound by its arbitration provision.

Upon review, Cleveland-Akron-Canton is not helpful to the defendants’ position.

Specifically, in Cleveland-Akron-Canton, this court noted that

although it is generally true that a party who has not contractually agreed to arbitrate

his or her dispute cannot be forced to arbitrate and forego judicial remedies, “[t]here

are instances where equity demands that parties who have not agreed to arbitrate

their disputes may be forced to do so when ‘ordinary principles of contract and

agency’ require.” Id. at ¶ 14, quoting McAllisters Bros., Inc. v. A & S. Transp. Co.,

621 F.2d 519, 524 (2d Cir.1980).

In Cleveland-Akron-Canton, the plaintiff cooperative entered into

cooperative agreements with the northeast Ohio franchisees of Physician Weight

Loss Centers of America, Inc. to satisfy the franchisees’ advertising responsibilities

under their franchise agreements with the franchisor, Physician Weight Loss

Centers of America, Inc. The franchise agreements contained arbitration
provisions, but the cooperative agreements did not, and Physician Weight Loss

Center of America, Inc. was not a party to the cooperative agreements.

Due to difficulties in collecting money, the cooperative initiated suit

against several delinquent franchisees and the franchisor. The defendants filed a

motion to dismiss or stay pending arbitration, which the trial court denied; the

defendants appealed.

This court found that the plaintiff cooperative wanted to enforce the

franchise agreements from which it had received benefits, while simultaneously

seeking to avoid their arbitration provisions. The panel held that because the

cooperative knowingly accepted the benefits of the agreements, it had to endure the

burdens as well, and found that the plaintiff cooperative was a third-party

beneficiary under the franchise agreements. Thus, by maintaining an action for

breach of contract against the franchisor for promises made in the franchise

agreements, the plaintiff cooperative bound itself to the terms contained therein,

and it had to submit the dispute to arbitration as outlined in the franchise

agreements.

Likewise, here, Kimberlee was not a party to the TIC Agreement but

from the beginning of the case she relied on the Agreement in an attempt to seek

benefits for the Trust and, by extension, for herself. Thus, it is possible that had the

defendants raised the issue of arbitration earlier, Kimberlee would have been bound

by it.
 We find two other cases cited by the defendants distinguishable from

the within case: Dumas v. N. E. Auto Credit, L.L.C., 8th Dist. Cuyahoga Nos. 108151

and 108388, 2019-Ohio-4789, and Gembarski v. PartsSource Inc., 157 Ohio St.3d

255, 2019-Ohio-3231, 134 N.E.3d 1175. Dumas and Gembarski involved class action

cases, where initially the individual plaintiffs filed cases for breach of agreements

that contained permissive arbitration clauses. Later, the cases were certified as class

actions and the defendants sought arbitration. This court and the Ohio Supreme

Court held that arbitration of the putative classes’ claims was not available until the

class-action certification because prior to that the putative class members were not

parties to the action.

Here, however, the subject parties ─ Kimberlee, Parma GE 4700, and

Parma VTA ─ were parties to the case since its inception in 2014. For the reason

discussed above, we are not persuaded that the issue of arbitration could not have

been raised and addressed prior to 2019.

We consider the case of Neel v. Perrino Constr., Inc., 8th Dist.

Cuyahoga No. 105366, 2018-Ohio-1826. In Neel, the plaintiffs sued the

construction company. The construction company answered, counterclaimed, and

filed a third-party complaint, but maintained that it was not waiving its right to insist

upon arbitration under the parties’ agreement. The company later sought to have

the case stayed pending arbitration, and the trial court granted its request. The

plaintiffs appealed.
 One of the issues on appeal was whether the construction company

had waived its right to arbitration by initially participating in the proceedings. This

court acknowledged the company’s participation in the litigation, but found it

“relatively limited,” and that “under the totality of the circumstances,” it had not

waived its right to arbitration. Id. at ¶ 35. The court noted that only three months

had passed from when the plaintiffs filed their complaint until the time the company

sought arbitration, that the plaintiffs had neither contended nor demonstrated that

they were prejudiced by the passage of time, and that the company had “consistently

reserved its right to arbitration.” Id.

In the instant case, five years elapsed before the defendants even

mentioned arbitration. It is true that Parma GE 7400 realigned, but it was always a

party in the case and the TIC Agreement was always at issue. At the very least, the

defendants could have reserved their right to arbitrate. On this record, under the

totality of the circumstances, the trial court did not abuse its discretion by denying

the defendants’ motion for partial stay of proceedings. Even if we reviewed under

the less deferential de novo standard, we would find no error. The sole assignment

of error is therefore overruled.

Judgment affirmed.

It is ordered that appellees recover from appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.
 A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

LARRY A. JONES, SR., JUDGE

ANITA LASTER MAYS, P.J., CONCURS;
MICHELLE J. SHEEHAN, J., DISSENTS
WITH SEPARATE OPINION

MICHELLE J. SHEEHAN, J., DISSENTING:

I respectfully dissent. I would hold Parma VTA, L.L.C. (“Parma VTA”)

did not waive its right to arbitration based on the facts in this case and reverse the

denial of defendants’ motion to stay pending arbitration.

First, the trial court’s basis for denying defendants’ motion to stay2 is

unclear. As noted by the majority, on April 17, 2019, plaintiffs3 filed a combined

opposition to defendants’ motion to compel filed April 5, 2019, and motion to stay

filed April 11, 2019. However, plaintiffs’ opposition only appears to address

defendants’ motion to compel, not the motion to stay. Plaintiffs added one sentence

in the conclusion requesting the trial court to alternatively “overrule the motions on

the grounds that defendants’ attempt to invoke the Court’s jurisdiction

is inconsistent with defendants’ claimed right to arbitration, thereby creating a

waiver of that right.” The same day plaintiffs filed the brief in opposition, defendants

2Defendants’ motion filed April 11, 2019, is a “motion for partial stay of proceedings” but
referred to herein as a “motion to stay.”
3 “Plaintiffs” herein refer to the original Plaintiff, Kimberlee A. Gerston, Trustee, the

Gerston Family Trust, Dated November 20, 2002 and the realigned Plaintiff, Parma GE
7400.
withdrew their motion to compel. Thus, plaintiffs never appeared to argue in the

proceedings below that defendants waived their right to arbitrate the five claims

asserted in the supplemental complaint because litigation has been pending for five

years, the basis of their argument on appeal.

To further complicate the issue, the docket reflects that the trial court

held defendants’ motion to stay in abeyance until a hearing was to be held on May

8, 2019. However, the record is void of any reference to such a hearing taking place.

Both parties in their appellate briefs refer to an “argument on May 8, 2019” or a

“scheduled oral argument on the pending motion to stay, which was expanded into

a general discussion of the issues in the case,” but neither a journal entry nor a

transcript exists regarding any “arguments” or “discussion” regarding defendants’

motion to stay. Therefore, it is unclear if the arguments on appeal were ever

considered by the lower court and therefore waived, especially as the lower court

provided no rationale for the ruling other than “Defendants’ Motion for Partial Stay

of Proceedings, filed 4/11/2019 is denied.”

Second, our standard of review appears to be a mixed standard of

review. “An assertion that a party waived an argument presents a mixed question of

law and fact.” Gembarski v. PartsSource, Inc., 157 Ohio St.3d 255, 2019-Ohio-3231,

134 N.E.3d 1175, ¶ 26. A reviewing court evaluates legal questions independently

but defers to a trial court’s factual findings when those findings are supported by the

record. State v. Keene, 81 Ohio St.3d 646, 656, 693 N.E.2d 246 (1998).
 Third, while I agree with the majority’s citation to case law outlining

the requirements to establish a party waived the right to arbitrate, I disagree that

the facts and totality of the circumstances establish defendants waived their right to

arbitrate the five claims at issue asserted by Parma GE 7400 in this case.

While the case has a lengthy history and has been pending over five

years, it is important to note that the court ordered the issues in this case bifurcated.

The first issue to be tried was who owned Parma GE 7400? Plaintiffs’ initial

complaint sued Parma GE 7400 and Parma VTA, L.L.C. Plaintiff Kimberlee A.

Gerston, Trustee, the Gerston Family Trust, Dated November 20, 2002

(“Kimberlee”) and Parma VTA both alleged that they owned Parma GE 7400.

Kimberlee’s original complaint sought a declaration that Kimberlee owned Parma

GE 7400. It was alleged that because Kimberlee owned Parma GE 7400, and Parma

GE 7400 was owed distributions from the Tenancy in Common Agreement (“TIC”),

that Kimberlee is owed the distributions that should be paid to Parma GE 7400.

(Claim III, original complaint, ¶ 33-34.) This is not a case whereby Kimberlee was

alleging she was a third-party beneficiary to the TIC Agreement. Rather, Kimberlee

and Parma VTA both alleged ownership of Parma GE 7400. Thus, Parma VTA did

not have a justiciable controversy with Parma GE 7400 based on Kimberlee’s initial

complaint because Parma VTA was also alleging ownership of Parma GE 7400. It

was not until the court held a trial and determined that Kimberlee was the lawful

owner of Parma GE 7400 that Kimberlee filed a supplemental complaint to realign

the parties and request leave for Parma GE 7400, as a plaintiff, to assert claims
against Parma VTA in a supplemental complaint. In the “Motion of Parma GE 7400

and Plaintiff for Leave to File Supplemental Complaint Instanter,” Parma GE 7400

and Kimberlee acknowledged that “Parma GE 7400’s claims were not ripe and could

not be brought” until the trial court determined who owned Parma GE 7400.4

Parma GE 7400, becoming an adverse party and asserting claims against Parma

VTA, triggered Parma VTA’s first obligation to assert arbitration as a defense against

Parma GE 7400’s claims, which Parma VTA did. Parma VTA filed a motion to stay

to arbitrate the five claims by Parma GE 7400 relating to the TIC agreement 23 days

after Kimberlee’s motion to realign Parma GE 7400 as a plaintiff was granted.

The Ohio Supreme Court’s recent ruling in Gembarski, 157 Ohio St.3d

255, 2019-Ohio-3231, 134 N.E.3d 1175, is instructive. In Gembarski, the Ohio

Supreme Court addressed whether PartsSource waived its right to assert arbitration

as a defense to a class-action certification action. Id. at ¶ 44. Specifically,

PartsSource did not raise arbitration as a defense to the plaintiff’s claims. However,

when the plaintiff sought class certification, including unnamed putative class

members who had entered into an arbitration agreement with PartsSource,

PartsSource raised the arbitration defense for the first time. The trial court and the

court of appeals held PartsSource waived its right to assert an arbitration defense.

In a case of first impression, the Ohio Supreme Court reversed the lower courts and

4Plaintiffs’
motion for leave provides, “Because Parma GE 7400’s claims arose and
ripened only after the Court rendered declaratory judgment, and further because those
claims could not practicably be asserted until after remand from the higher courts, Parma
GE 7400 and [Kimberlee], its owner in accordance with the declaratory judgment, should
be permitted to assert the original and supplemental claims.”
held “PartsSource did not need to raise defenses that would be applicable against

only those unnamed potential putative class members who were merely potential

future parties.” Id. at ¶ 28. The Ohio Supreme Court noted that the unnamed

putative class members were not parties to the class action prior to certification. Id.

at ¶ 29. “Absent class certification, there is no justiciable controversy between a

defendant and the unnamed putative class members.” Id. at ¶ 31, citing Kincaid v.

Erie Ins. Co., 128 Ohio St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, ¶ 17 (a

controversy, to be justiciable, must be grounded on a present dispute, not a possible

future dispute); State ex rel. Barclays Bank P.L.C. v. Hamilton Cty. Court of

Common Pleas, 74 Ohio St.3d 536, 544, 660 N.E.2d 458 (1996) (justiciable matters

are actual controversies between the parties); see also Mallory v. Cincinnati; 1st

Dist. Hamilton No. C-110563, 2012-Ohio-2861, ¶ 10 (recognizing that this court has

interpreted justiciable matters to mean an actual controversy, one with adverse legal

interests, between the parties). While Gembarski pertains to class-action

certification, the case is instructive here: until a justiciable claim exists between

parties, without more, an obligation to raise arbitration as a defense does not exist.

Otherwise, parties would be required to raise arbitration as a defense or fear waiving

it in every case where an arbitration provision exists in a contract, even if the parties

to the contract do not have claims asserted against each other. Therefore, I dissent.
KEYWORDS:

Arbitration; motion for stay of proceedings; waiver of arbitration.

In light of the totality of the circumstances, the trial court did not abuse its discretion

where it denied appellants’ motion for partial stay of proceedings. The failure to

reserve the right to arbitrate constituted a waiver.