Volume 15 — Kansas Court of Appeals Reports, Second Series

SYLLABUS BY THE COURT 1. ARBITRATION — <italic>Binding Agreement to Arbitrate Disputes —</italic> <italic>Trial Judge Required to Stay Court Proceedings and Compel</italic> <italic>Arbitration.</italic> K.S.A. <cross_reference>5-402</cross_reference>(a) clearly requires a trial judge to stay court proceedings and compel arbitration when the parties have entered into a binding agreement to arbitrate disputes. 2. SAME — <italic>Binding Agreement to Arbitrate Disputes — Waiver of</italic> <italic>Right to Arbitrate — Conduct of Party May Constitute</italic> <italic>Waiver.</italic> The conduct of a party that is inconsistent with the treatment of a contractual arbitration provision, or conduct that a court could reasonably construe as evidencing a lack of intent to take advantage of an arbitration provision, may amount to the waiver of a right to arbitrate. 3. SAME — <italic>Binding Agreement to Arbitrate Disputes — Waiver of</italic> <italic>Right to Arbitrate — Appeal on Issue of Waiver — Scope of</italic> <italic>Appellate Review.</italic> The scope of review by an appellate court on the issue of whether a party has waived its right to arbitration is limited. A finding by the trial court that a party has waived its right to arbitration is a legal conclusion subject to plenary review by the appellate court; however, the findings upon which the conclusion of waiver is based are predicate questions of fact which may not be overturned by the appellate court unless such findings are clearly erroneous. 4. SAME — <italic>Binding Agreement to Arbitrate Disputes — Waiver of</italic> <italic>Right to Arbitrate — Determination of Whether Party Has</italic> <italic>Waived Right.</italic> The essential issue in determining whether a party has waived its right to arbitration is not whether the moving party's actions have been consistent with arbitration, but rather, whether prejudice would occur to the party opposing arbitration. 5. SAME — <italic>Binding Agreement to Arbitrate Dispute — Waiver of</italic> <italic>Right to Arbitrate — Determination of Whether Party Has</italic> <italic>Waived Right — Factors to Be Considered by Court in Making</italic> <italic>Determination.</italic> Factors to be considered by the court in determining whether a party has waived the right to arbitration are: (1) whether the party's actions are inconsistent with the right to arbitrate; (2) whether the litigation machinery has been substantially invoked and the parties are well into preparation of a lawsuit before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a<page_number>Page 115</page_number> stay of the proceedings; (5) whether important intervening steps (e.g., taking advantage of judicial discovery procedures not available in arbitration) had taken place; and (6) whether the delay affected, misled, or prejudiced the opposing party. 6. EVIDENCE — <italic>Uncontroverted Evidence — Such Evidence Regarded</italic> <italic>as Conclusive unless shown to Be Untrustworthy.</italic> It is a general rule of law that uncontroverted evidence which is not improbable or unreasonable cannot be disregarded by the trial court unless it is shown to be untrustworthy, and such uncontroverted evidence should ordinarily be regarded as conclusive. 7. SAME — <italic>Controverted Testimony.</italic> Testimony may be controverted by the testimony of any competent witness or the admission of any relevant evidence.