Section 23 Generally

• Library: Consumer Law and Practice 2010

It often happens that one of the parties to a valid arbitration agreement will file a lawsuit against the other in court instead of proceeding to arbitration. The defendant in such a suit usually has two options. If the defendant would rather resolve the dispute in court (despite the existence of a valid arbitration agreement), that defendant may proceed with the litigation, thereby permanently "waiving" the right to ever seek arbitration of the dispute See § 9.39, infra. Alternatively, the defendant may file a motion to compel arbitration. If granted, the order usually stays the court proceeding and directs the parties to resolve their dispute in arbitration. Such a motion to compel arbitration "is an equitable remedy designed to compel specific performance of a term in a contract." Netco, Inc. v. Dunn, 194 S.W.3d 353, 362 (Mo. banc 2006).

A stay, rather than dismissal, is the proper trial court ruling when the court compels arbitration: A motion for stay of proceedings is generally available to a trial court; granting a stay would not need "the sanction of a specific court rule or statute." State ex rel. St. Joseph Light & Power Co. v. Donelson, 631 S.W.2d 887, 892 (Mo. App. W.D. 1982); State ex rel. Geil v. Corcoran, 623 S.W.2d 555 (Mo. App. E.D. 1981). This remedy of an order staying proceedings is provided by both 9 U.S.C. § 3 and § 435.355.4, RSMo 2000, of the MUAA (Missouri Uniform Arbitration Act), § 435.350 et seq., RSMo 2000. Generally, a court must stay litigation if it determines that the parties agreed to arbitrate. Getz Recycling, Inc. v. Watts, 71 S.W.3d 224, 229 (Mo. App. W.D. 2002). A stay will allow the trial court to retain jurisdiction, allowing that same court to later preside over disputes that might arise regarding the award.

When faced with a motion to compel arbitration, the trial court must first determine whether a valid arbitration agreement exists and, if so, whether the specific dispute falls within the scope of the arbitration agreement. Dunn Indus. Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 427-28 (Mo. banc 2003); Nitro Distrib., Inc. v. Dunn, 194 S.W.3d 339, 345 (Mo. banc 2006). In making these determinations, the court should apply the usual rules of state contract law and canons of contract interpretation. Dunn, 112 S.W.3d at 428. Those rules include the rules of evidence. In a hearing under § 435.355.1, it is thus critical for the party seeking to compel arbitration to establish, through the introduction of...