dissenting:
I respectfully dissent and would stay the proceedings in the trial court pending arbitration of this matter.
The majority finds that the circuit court had jurisdiction to stay the arbitration proceedings between Coker Builders and RDC because there was no written order in the prior proceeding compelling arbitration.
The majority puts much weight in the fact that there was no written agreement to arbitrate as required by the South Carolina Arbitration Act. However, it is undisputed that arbitration proceedings began in early 1988. RDC failed to object or appeal from the arbitration proceedings. The parties paid an arbitration fee, prepared to pick arbitrators, and requested a change in locale for the arbitration. It is apparent they were prepared to proceed with, and consented to, the arbitration. I would find the above actions manifest the intent to submit *401this matter to arbitration and are equivalent to a written agreement to arbitrate.1
Furthermore, the fact that the order in the prior proceeding was never educed to writing is not dispositive of the issue. An oral order compelling arbitration was issued by the court and is acknowledged in a letter by then-counsel for RDC. A judge may bind the parties with an oral order dictated into the record. Lane v. Willianson, 414 S.E. (2d) 177 (Ct. App. 1992). Once such an order is put into operation, absent a written order contradicting it, the court is bound by it.
Although we are not presented with a transcript of record of the oral order, the record presents evidence of the parties’ acknowledgment of the order staying the proceedings in the first action in favor of arbitration. Consequently, I would find that that order was binding on the parties.
Thereafter, because the parties had agreed to arbitrate, the first action was dismissed without prejudice. The court then lost subject matter jurisdiction over that action. The court in the second proceeding could not stay arbitration, which was compelled in the first action, as that would be tantamount to the trial judge overruling the prior trial judge which is improper. Consequently, the court in this action was without jurisdiction to order a stay of arbitration.
For the foregoing reasons, I believe there was an agreement between these parties to arbitrate this dispute. Accordingly, I would reverse the order of the lower court and remand for a stay of proceedings pending arbitration.
Moreover, I am not convinced there was no written agreement to arbitrate between the parties. The contract of the parties specifically calls for the use with the contract of an AIA Document A201 containing the general conditions of the contract. In these general conditions is the arbitration clause.
The trial court held that these conditions were not included in the contract because they were not specifically enumerated in the contract documents in Article 7. However, Article 7 refers the parties to Article 1 which lists the contract documents as consisting of this Agreement and includes the Conditions of the Contract.
Unfortunately, Coker did not appeal this finding of the trial court.