Aurora Healthcare, Inc. v. Ramsey

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Justia Opinion Summary

Aurora Healthcare, Inc., Aurora Cares, LLC, (d/b/a Tara Cares) and Birmingham Nursing and Rehabilitation Center East, LLC appealed a circuit court order that denied their motion to compel arbitration. Mary Pettway, then 75 years old, was discharged from the hospital at the University of Alabama at Birmingham and admitted to a nursing home in Birmingham owned and operated by the defendants. She was returned to the hospital and then readmitted to the nursing home twice in the weeks following her initial discharge. Upon Pettway's first readmission, an arbitration agreement was executed, along with the other admission documents, on her behalf. Pettway was finally returned to the hospital, where she died on December 10, 2003. Sharon Ramsey, in her capacity as administratrix of Pettway's estate, filed a complaint against the defendants. The complaint asserted a variety of statutory and common-law claims allegedly arising from Pettway's death, including a wrongful-death claim. The defendants filed a motion to dismiss or for a change of venue. The parties litigated the issue of venue vigorously until the Wilcox Circuit Court entered an order transferring the case to the Jefferson Circuit Court. The "Aurora" defendants filed a motion to dismiss on the ground that they did not own the nursing home at which Pettway resided during the relevant period. Because the Supreme Court concluded that there was insufficient evidence in the record to support a determination that Ramsey was substantially prejudiced by defendants' belated assertion of their right to arbitration, "the order of the circuit court denying the defendants' motion to compel arbitration must be reversed. We are unable to determine, however, whether this case is due to be arbitrated." Accordingly, the Court reversed the circuit court's order denying the defendants' motion to compel arbitration. The Court remanded the case for that court to consider the motion to compel arbitration in light of the issues associated with the validity and scope of the arbitration agreement proffered by the defendants.

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REL 10/21/2011 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . SUPREME COURT OF ALABAMA OCTOBER TERM, 2011-2012 1091561 A u r o r a H e a l t h c a r e , I n c . ; A u r o r a C a r e s , L L C , d/b/a T a r a C a r e s ; and B i r m i n g h a m N u r s i n g and R e h a b i l i t a t i o n C e n t e r E a s t , LLC v. S h a r o n Ramsey, as a d m i n i s t r a t r i x o f t h e e s t a t e o f Mary Pettway Appeal MALONE, C h i e f Aurora Cares from J e f f e r s o n C i r c u i t (CV-06-2168) Court Justice. Healthcare, (hereinafter Inc.; Aurora referred Cares, to collectively LLC, d/b/a Tara as " t h e A u r o r a d e f e n d a n t s " ) ; and Birmingham N u r s i n g and R e h a b i l i t a t i o n Center 1091561 East, LLC Birmingham "the ("Birmingham East East") (the Aurora defendants and are hereinafter referred to c o l l e c t i v e l y defendants"), appeal Circuit Court denying reverse from an order of as the Jefferson t h e i r motion t o compel a r b i t r a t i o n . and remand. Facts and P r o c e d u r a l History On o r a b o u t N o v e m b e r 7, 2 0 0 3 , M a r y P e t t w a y , t h e n old, was d i s c h a r g e d Alabama from at Birmingham Birmingham returned owned the hospital and admitted and operated to the hospital by 75 to a nursing home i n readmitted S h e was to the nursing home t w i c e i n t h e weeks f o l l o w i n g h e r i n i t i a l d i s c h a r g e . Pettway's first readmission, apparently executed, on behalf hospital, Pettway she d i e d On N o v e m b e r 3, 2 0 0 5 , was on D e c e m b e r Sharon administratrix of Pettway's Wilcox Court Circuit arbitration agreement along with the other admission of Pettway. where an against finally Upon was documents, returned to the 10, 2003. Ramsey, estate, years at the U n i v e r s i t y of the defendants. and then We filed i n h e r c a p a c i t y as a complaint the defendants. 1 The i n the complaint O t h e r e n t i t i e s named a s d e f e n d a n t s w e r e d i s m i s s e d a f t e r p r o v i n g t h e y d i d n o t own o r o p e r a t e t h e n u r s i n g home w h e r e P e t t w a y r e s i d e d d u r i n g t h e p e r i o d r e l e v a n t t o Ramsey's c l a i m s . 1 2 1091561 asserted a allegedly arising death variety of from Pettway's death, defendants filed o f v e n u e on D e c e m b e r 6-5-546. against where omissions result, until a provider acts occurred was a motion That s t a t u t e p r o v i d e s the alleged there on common-law including a claims wrongful- question the parties the Wilcox of 27, 2006. occurred, one c o u n t y . fact as litigated Court i f the acts or to whether i n only entered Court action i n the county Ramsey the issue case t o the J e f f e r s o n C i r c u i t March o f A l a . Code 1 9 7 5 , must be b r o u g h t of occurred Circuit o r f o r a change that a wrongful-death or omissions i n only complained to dismiss 6, 2 0 0 5 , o n t h e b a s i s a health-care omissions the and claim. The § statutory alleged that the acts and one c o u n t y . o f venue an o r d e r As a vigorously transferring ("the c i r c u i t court") 2 The defendants and t h e c i r c u i t c o u r t b o t h s t a t e v a r i o u s l y i n t h e r e c o r d t h a t R a m s e y p e t i t i o n e d f o r a w r i t o f mandamus t o r e t u r n t h e c a s e t o W i l c o x C o u n t y . No e v i d e n c e o f t h e p e t i t i o n appears i n the record. The c i r c u i t c o u r t , i n i t s o r d e r o f J u n e 2 3 , 2 0 1 0 , s t a t e s t h a t t h e p e t i t i o n was f i l e d w i t h t h e Alabama Supreme C o u r t , b u t i t a l s o s t a t e s t h a t t h e c i r c u i t c o u r t e n t e r e d a n o r d e r d e n y i n g t h e mandamus p e t i t i o n on J u n e 21, 2006. T h i s C o u r t ' s r e c o r d s i n d i c a t e t h a t a p e t i t i o n f o r a w r i t o f mandamus f i l e d b y R a m s e y was d e n i e d o n J u n e 2 1 , 2 0 0 6 (case no. 1051091). 2 3 1091561 On May 1 1 , 2 0 0 6 , dismiss at on t h e g r o u n d t h a t which same Pettway day, resided Birmingham complaint. defendants they filed d i d n o t own t h e n u r s i n g home during the relevant East a motion t o filed an period. answer to On t h e Ramsey's On May 1 7 , 2 0 0 6 , t h e c i r c u i t c o u r t e n t e r e d b o t h a scheduling motion the Aurora order a n d an o r d e r d e n y i n g to dismiss. the Aurora defendants' 3 On A u g u s t 2 1 , 2 0 0 6 , R a m s e y m o v e d f o r a n e x t e n s i o n o f t h e deadline set i n the scheduling order f o r f i l i n g expert-witness disclosures 23, 2006, motion. pursuant the defendants Also defendants i n August October extend filed and their On A u g u s t opposition September 2006, served interrogatories o f documents 11, 2006, the time disclosures. responded 2 6 , A l a . R. C i v . P. to the s e r v e d n o t i c e s o f i n t e n t t o subpoena t h i r d The A u r o r a d e f e n d a n t s production to Rule i n which On filed t o make t h e i r October 25, 2006, their Rule Aurora parties. and r e q u e s t s f o r on Ramsey on S e p t e m b e r the defendants that 19, 2006. On own m o t i o n to 26 e x p e r t - w i t n e s s the Aurora defendants t o Ramsey's d i s c o v e r y r e q u e s t s . A l t h o u g h t h e May 1 7 , 2 0 0 6 , o r d e r a n d o t h e r o r d e r s a n d f i l i n g s r e f e r r e d t o by t h e p a r t i e s a r e n o t i n c l u d e d i n t h e r e c o r d , t h e c i r c u i t c o u r t s t a t e s i n i t s June 23, 2010, o r d e r that i tentered the e a r l i e r order. 3 4 1091561 On N o v e m b e r 3, 2 0 0 6 , t h e d e f e n d a n t s f i l e d compel a r b i t r a t i o n , b a s e d i n p a r t on t h e a r b i t r a t i o n executed i n conjunction e x e c u t e d upon P e t t w a y ' s That t h e i r motion to motion in explanation for their this this case the admission second constitutes arbitration arbitrate with agreement agreement Ramsey admission to the nursing the defendants' proceeding. delay first mention The defendants' asserting in home. their i s contained i n a motion of entire right to f o r an e x t e n s i o n o f t h e i r own R u l e 26 e x p e r t - w i t n e s s d i s c l o s u r e d e a d l i n e s , also f i l e d b y t h e d e f e n d a n t s on N o v e m b e r 3, 2 0 0 6 : only recently became aware agreement between Active of litigation the parties file sent issue hearing participating corresponding circuit court On May they had waived record then f a l l s arbitration to the c i r c u i t the letter an arbitration and t h e D e f e n d a n t s . " t o compel letter briefs. in of c o n t i n u e d t h r o u g h A p r i l 24, 2008, the a letter brief whether existence the P l a i n t i f f a h e a r i n g on t h e m o t i o n During the "Defendants their from inexplicably 2008, that the the defendants addressing only the right to a r b i t r a t i o n process. Ramsey conducted. requested court litigation brief 2, was when There is i n the record. by no The s i l e n t f o r n e a r l y two y e a r s . I n 5 1091561 April new and May counsel On 2010, entered June 23, counsel an f o r the defendants withdrew appearance. 2010, the circuit court entered its denying the d e f e n d a n t s ' motion to compel a r b i t r a t i o n . order, the circuit court found that the s u b s t a n t i a l l y invoked the l i t i g a t i o n process issue a of venue to conclusion, by that Ramsey attorney 23, 2010, fees i n d i s c o v e r y . The had been prejudiced in participating order circuit by states, in pertinent that defendants had by l i t i g a t i n g the to file t r a n s f e r r e d , and court also incurring i n the order In continuing " s i g n i f i c a n t p l e a d i n g s " a f t e r t h e c a s e was participating and by determined significant litigation. The June part: "[T]he D e f e n d a n t s f i l e d an A n s w e r on May 11, 2006, that failed to assert a right to a r b i t r a t i o n . I n a d d i t i o n t o f i l i n g an A n s w e r , t h e Defendants filed s e v e r a l motions to dismiss or t r a n s f e r v e n u e , t h u s c o n t i n u i n g t o p r o c e e d as i f t h e y were p r e p a r i n g f o r a j u d i c i a l r e s o l u t i o n of Plaintiff[']s claims. The parties litigated the i s s u e of venue f o r t h r e e months. This undoubtedly ' b e s p e a k s an intention to abandon the r i g h t [to compel arbitration] in favor of the judicial process.' See, Companion Life Ins. Co. [v. W h i t e s e l l Mfg., I n c . , 670 So. 2 d 895 ( A l a . 1995),] a n d V o y a g e r L i f e I n s u r a n c e C o . [ v . H u g h e s , 841 So. 2 d 1216 (Ala. 2002)]. The Defendants were in p o s s e s s i o n of the a r b i t r a t i o n document t h r o u g h o u t [ 4 ] The o n l y answer Birmingham East. 4 filed on 6 May 11, 2006, was filed by 1091561 their participation in the litigation-related a c t i v i t y , a n d i t s e r v e s no p u r p o s e f o r a p a r t y who does not intend to waive the right to compel a r b i t r a t i o n t o , b e f o r e moving to compel a r b i t r a t i o n : l i t i g a t e the venue i s s u e to a c o n c l u s i o n ; f o l l o w i n g t r a n s f e r of the a c t i o n to t h i s C i r c u i t Court, continue l i t i g a t i o n with significant pleadings filed; p a r t i c i p a t e i n the d i s c o v e r y p r o c e s s . "To for the u n d e r s i g n e d , i t i s c l e a r the D e f e n d a n t s were a judicial resolution. preparing "In Ex p a r t e H o o d , 712 So. 2d 341 ( A l a . 1998 ) , the d e f e n d a n t r e m o v e d an a c t i o n t o t h e f e d e r a l c o u r t . F o u r m o n t h s l a t e r , w h i l e t h e a c t i o n was still pending i n the f e d e r a l court, the defendant advised the plaintiff through correspondence that i t was invoking i t s rights under an a r b i t r a t i o n agreement. S h o r t l y t h e r e a f t e r , i n i t s answer to the complaint, the defendant asserted its right to arbitration. [The] C o u r t s t a t e d : "'We might assume that i f Golden [the d e f e n d a n t ] h a d i m m e d i a t e l y f o l l o w e d ... i t s removal w i t h s e r v i c e of i t s answer p l e a d i n g an a r b i t r a t i o n d e f e n s e , such a c t i o n would have been sufficient to put Hood [the plaintiff] on n o t i c e that Golden still i n t e n d e d i n the f e d e r a l c o u r t to r e s e r v e its r i g h t to seek a r b i t r a t i o n . F i l i n g an answer at such a time might have i n d i c a t e d that Golden intended to pursue a r b i t r a t i o n i n s t e a d o f a f e d e r a l j u d i c i a l remedy, and i t w o u l d have g i v e n Hood t h e o p p o r t u n i t y t o a v o i d spending the resources necessary to have the case remanded to the s t a t e c o u r t for a trial. As i t was, G o l d e n r e m o v e d t h e c a s e t o t h e f e d e r a l c o u r t and p r o c e e d e d as if i t was preparing for a judicial r e s o l u t i o n of Hood's c l a i m . ' 7 1091561 "Hood, supra. "In c o n c l u s i o n , when R a m s e y ' s C o m p l a i n t was f i l e d on N o v e m b e r 3, 2 0 0 5 , t h e s e D e f e n d a n t s h a d i n t h e i r p o s s e s s i o n an a r b i t r a t i o n d o c u m e n t , y e t t h e y proceeded to engage in litigation activities (including, notably, a legal fight over exactly where to a c t u a l l y litigate, and t h e f i l i n g o f an Answer t h a t d i d not a s s e r t a r i g h t to arbitration) until N o v e m b e r 3, 200 6, e x a c t l y one year after f i l i n g of the Complaint. The C o u r t DETERMINES t h a t Plaintiff Ramsey has indeed been p r e j u d i c e d by Defendants' unreasonable d e l a y to r a i s e the r i g h t to a r b i t r a t i o n i n t h a t she s i g n i f i c a n t l y participated in the litigation so far, thereby incurring c o n s i d e r a b l e a t t o r n e y f e e s and e x p e n s e s f o r , t o - w i t : c o n d u c t i n g l e g a l r e s e a r c h ; argument i n o p p o s i t i o n to t r a n s f e r r i n g v e n u e ; p r e p a r i n g and f i l i n g a p e t i t i o n f o r w r i t o f mandamus w i t h t h e A l a b a m a S u p r e m e C o u r t ; r e s p o n d i n g t o s e v e r a l m o t i o n s t o d i s m i s s and s t r i k e ; p r e p a r i n g a n d f i l i n g an A m e n d e d C o m p l a i n t ; preparing d i s c o v e r y and r e s p o n d i n g t o d i s c o v e r y ; p a r t i c i p a t i n g i n phone c o n f e r e n c e s ; and, of c o u r s e , m a k i n g c o u r t appearances. As a l l o f t h e f o r e g o i n g o c c u r r e d a s a direct result of Defendants' continuing p a r t i c i p a t i o n i n the l i t i g a t i o n p r o c e s s , t h i s Court F I N D S t h a t D e f e n d a n t s h a v e c l e a r l y WAIVED a n y right to compel a r b i t r a t i o n of P l a i n t i f f Ramsey's c l a i m s . " (Capitalization litigation 2010, was and activity devoted to emphasis i n o r i g i n a l . ) between the November question Standard In this evidence. and on case, the of circuit I t s f i n d i n g s of f a c t hearings attended of 3, V i r t u a l l y a l l the 2006, by 8 June 23, arbitration. Review court heard w e r e b a s e d on only and counsel. ore tenus the paper record Our no review under 1091561 such a circumstances party has waived ClimaStor IV, 452, (Ala. 455 circuit on will L.L.C. not be the its v. 2008). court's questions of fact, reversed Home C t r . , I n c . v . right the court's to Marshall To findings of circuit arbitration Constr., extent, supporting i t s judgement unless Mullican, So. is L.L.C., however, based on 2d 558, de 4 560 novo. So. are those erroneous. that that i t s conclusion clearly 774 determination 3d the based findings Big Valley (Ala. 2000). Discussion Whether a party has waived i t s right p a r t i c i p a t i n g i n the l i t i g a t i o n process to the following to arbitration i s determined pursuant standard: " I t i s w e l l s e t t l e d under Alabama law t h a t a p a r t y may w a i v e i t s r i g h t t o a r b i t r a t e a d i s p u t e i f i t s u b s t a n t i a l l y invokes the l i t i g a t i o n process and thereby s u b s t a n t i a l l y p r e j u d i c e s the p a r t y opposing arbitration. W h e t h e r a p a r t y ' s p a r t i c i p a t i o n i n an a c t i o n a m o u n t s t o an e n f o r c e a b l e w a i v e r o f i t s r i g h t t o a r b i t r a t e d e p e n d s on w h e t h e r t h e participation b e s p e a k s an i n t e n t i o n t o a b a n d o n t h e r i g h t i n f a v o r of the j u d i c i a l process and, i f so, whether the o p p o s i n g p a r t y w o u l d be p r e j u d i c e d b y a s u b s e q u e n t order requiring i t to submit to a r b i t r a t i o n . No r i g i d r u l e e x i s t s f o r d e t e r m i n i n g what constitutes a waiver of the right to arbitrate; the d e t e r m i n a t i o n as t o w h e t h e r t h e r e h a s b e e n a w a i v e r m u s t , i n s t e a d , be b a s e d on t h e p a r t i c u l a r f a c t s o f each case." 9 by 1091561 Companion Life Ins. 897, (Ala. 1995). 899 Co. must d e m o n s t r a t e b o t h has an substantially intent process, to (2) "substantially that 2d policy 633 that the the by Beginning Inc. Because waiver of c o n c l u d e t h a t Ramsey has with establishing defendants' compel attorney substantial belated Ramsey s t a t e d fees and right and the party the that had as 10 a strong 987 second So. federal compel at to 564. -¬ "heavy burden" caused "incurred of 959 prejudice the by the agreement. defendants' result 561, question arbitration the 2d seeking 2d be submit to So. substantially to expenses Bowen, to c a r r y her of would So. the the opposition she judicial i t to 987 a prejudice invocation i n her arbitration failed is Boles, w h e t h e r t h e o p p o s i n g p a r t y w o u l d be we the of inferred, analysis of Bank v. there a "heavy burden." our bespeaking Boles, SouthTrust lightly process, requiring v. 2d arbitration favor order So. seeking opposing a r b i t r a t i o n an arbitration, i s not p r o v e w a i v e r has 2006). 670 arbitration party in Inc., opposing litigation party also Mfg., party arbitration the See (Ala. favoring arbitration the Paragon L t d . , (Ala. 2007). 624, (1) prejudiced" to a r b i t r a t i o n . 564 Whitesell Thus, invoked abandon and v. motion to considerable Defendants' 1091561 participation her i n the counsel's responses that and Circuit Ramsey opposition court's had to [related solely and of to not ... in and phone Wilcox and order likewise states research; "legal venue; s t r i k e ; preparing are 2010, argument preparing the and and ... to filing responding and Alabama venue]; responding i n phone c o n f e r e n c e s ; assertions J u n e 23, mandamus w i t h p r e p a r i n g d i s c o v e r y and discovery research, appearances that Courts." conducted for writ Ramsey s t a t e d "preparing legal court transferring petition dismiss ... making circuit process." included discovery, County Jefferson The activities to conferences litigation filing Supreme several by to an A m e n d e d C o m p l a i n t ; to d i s c o v e r y ; any a Court motions participating making court appearances." supported in factual evidence These in the record. In 2003), Hales this determining prejudiced "'the party undergo the v. ProEquities, Court stated whether seeking types of 885 So. 2d 100 to the factors most party the i f ordered Inc., opposing arbitration arbitrate. arbitration litigation 11 allows One the (Ala. significant factor is will in be whether opposing party expenses that a r b i t r a t i o n to was 1091561 designed Morewitz Ass'n, to alleviate.'" v. West 62 F.3d 885 of England 1356, Ship 1366 the party judicial discovery procedures at 105-06 Nordie, 389 F . 2 d 6 9 2 , 696 n.7 106 (quoting of events her t h a t was initially The t i m e l i n e p u r p o r t e d l y d e m o n s t r a t e s that much of advantage of v. Rederi that court reproduced by Ramsey i n t o compel arbitration. the extent to which costs The i n c u r r i n g constitute prejudice i n light "[a] defendant established before A/B produced Ramsey's the i s s u e of venue. however, cannot holding is s u b s t a n t i a l l y invoked the l i t i g a t i o n process. shows litigating Another in arbitration.'" Carcich i n o p p o s i t i o n to the motion timeline & Indem. (2d C i r . 1 9 6 8 ) ) . a timeline defendants Prot. "'took i t s June 23, 2010, o r d e r , t h e c i r c u i t filing (quoting Mut. not a v a i l a b l e 885 venue at Owners arbitration Hales, In 2d 2d (11th C i r . 1995)). whether So. seeking So. has t h e r i g h t i t has any were 5 the The incurred of those costs, of t h i s Court's t o have t h e p r o p e r obligation t o move to M a n y o f t h e e v e n t s l i s t e d u n q u e s t i o n a b l y do n o t show t h e defendants' invocation of the l i t i g a t i o n process. For example, the f i r s t event l i s t e d i s t h e f i l i n g o f Ramsey's complaint. 5 12 1091561 compel a r b i t r a t i o n . " So. 2d 287, The (Ala. litigation when t h e and 292 Thompson v. c a s e was 1999). filed, were Procedure of incorporated conducted t r a n s f e r r e d to primarily the Real Estate the motion Jefferson to discovery National between A p r i l Circuit compel oriented. Arbitration The Rule the in arbitrating support of, discovery or n.7). discovery 885 See So. So. also 2d participating We overrule 6 2d at 106 appears was of expressly 284 (Ala. in discovery note that Thompson. Ramsey to have nursing submit to, available a l l claims. 7 of defendants "'took advantage of available in Carcich, Steakhouse, Civ. App. permitted does We take j u d i c i a l notice Forum's Code o f P r o c e d u r e . See v . P e r o t , 991 So. 2d 1 2 8 1 , 1284 7 13 been home, conducted (quoting Family to opposition p r o c e d u r e s not Ryan's 273, parties in s o r t that suggests that the Hales, 966 requires i f any, judicial Court, i n t o the a r b i t r a t i o n agreement a l l e g e d l y e x e c u t e d at Little, 2006, Code Forum, Ramsey upon P e t t w a y ' s s e c o n d a d m i s s i o n t o t h e documents 729 arbitration by 6 Co., 6 activities N o v e m b e r 2 0 0 6 , when t h e Skipper not 389 Inc. 2006) arbitration.'" F. v. 2d at 696 Kilpatric, (noting that under r u l e s s p e c i f i e d i n argue that we should of the National Arbitration C h r i s Myers Pontiac-GMC, Inc. (Ala. 2008). 1091561 the arbitration agreement constitute prejudice). We do n o t i c e s of i n t e n t to serve suggestion incurred any The in in the litigation after arbitration. arbitration contrary any be the conclusory Her other spent in did not even in litigation i n such matters. alleging prejudice action no or notices. Ramsey's by the time expended to opposing devoted party opposing A holding absurdity that that to every the party allege prejudice to she arbitration had a c c o m p a n i e d by compelled allege incurred is on the opposed i t . not matters not served there any was opposition being took prejudicial. e v i d e n c e i n s u p p o r t of the by does defendants those immediately assertions m o t i o n was prejudiced Ramsey 2006 the party motion to incurred in can parties the Ramsey much o f considered result that Ramsey's costs. that November arbitration mere g r o u n d only not would opposing that Expenses are note that i n response reflects the nonparty subpoenas, but record expenses record between how or an litigation affidavit to a r b i t r a t e her hours amount o f i s u n l i k e l y to p r e v a i l counsel fees or without by would claims. her A l a b a m a c a s e l a w shows t h a t 14 or a l l e g a t i o n t h a t she many the incurred presented had expenses a party presenting 1091561 supporting So. evidence. 2d a t 633 failed See, e.g., ( h o l d i n g t h a t the p l a i n t i f f his allegation t h a t he w o u l d be compelled to a r b i t r a t e ) . So. 2d evidence 1203, in 1209 arbitration, motion to compel Steakhouse, found no Inc. the arbitration, resources seeking v. the trial where the allegations that she had to Inc., party presents court motion to should in 2d record at grant Ryan's 284, the Family the court contained no evidence plaintiff, the who opposed expended discovery no supported So. evidence Greenstreet, Thus, 966 of no being [a] properly Kilpatric, Court's opinions opposing a high the substantially well arbitration significant propounded by time the and party arbitration. party supra, a arbitration."). responding This applying to ("If 959 p r e j u d i c e d by a l s o Ex p a r t e ( A l a . 2001) then prejudice supporting See opposition compel the opposing t o m e e t h i s " h e a v y b u r d e n " when he p r o v i d e d supporting 806 S o u t h T r u s t Bank v. Bowen, arbitration standard. plaintiff's prejudiced supported by upholding the a finding are equally of p r e j u d i c e to consistent in In W h i t e s e l l M a n u f a c t u r i n g , argument i f that he arbitration fact 15 that the would were Inc., have been compelled defendant was sought 1091561 arbitration court and dispose at had i t had received That an federal plaintiff In (Ala. Ocwen L o a n that the to federal also transferred After remand of case move such to facts, "realistically prejudiced opposing (including LLC by the filed a remand. affidavit court. fees Id. 939 to the state the compel court. So. Court the necessity of So. opposing 2d 939 concluded that motions in Only arbitration. this removal, litigation Illinois, 2d court the filing the to and b r i e f s i n I l l i n o i s ) , at 17. 16 had and won the 14-15. i t could motions transfer did at plaintiff case Illinois. then 2d 6 the plaintiff So. that 2d showing a r b i t r a t i o n removed to to So. a r b i t r a t i o n , then sought t o have the disputed" 939 670 an a n s w e r i n t h e f e d e r a l be filing federal i n i t s attempt v. W a s h i n g t o n , seeking transfer the defendant Under the to grounds. state to pending m u l t i d i s t r i c t opposing case by c o u n s e l and t h e amount o f defendant d i d not mention ruling s u b m i t t e d an Servicing, court, the statutory i n s e e k i n g remand t o the 2006), action removed adverse number o f h o u r s e x p e n d e d incurred for after o f t h e c a s e on 899. the only not been briefs Illinois and moving 1091561 In 558 a Big Valley ( A l a . 2000), motion to had and i t d i d on concluded i n which the the had that Under applicable the belated been plaintiff that opposing So. 2d court's denial the 774 of defendant invoke an arbitration of t r i a l " and immediately made. 774 So. 2d had been before allowed to the she of facts was their the defendant of this conclude to bespeak an 563. time moved arbitration case and t h a t Ramsey p r e j u d i c e d by arbitration prejudice," defendants at expend the to here intent had we rights. pretermit discussion to abandon their Conclusion 17 litigation right to failed Because m u s t show b o t h t h e invoked the the defendants' a defendant's s u b s t a n t i a l i n v o c a t i o n o f t h e l i t i g a t i o n p r o c e s s and "substantial seeking Id. undisputed assertion to "eve s t a n d a r d o f r e v i e w , we establish Mullican, "too g r e a t a d e l a y took p l a c e " i n a plaintiff arbitration. where years money p r e p a r i n g f o r t r i a l compel to two settlement offer This Court case arbitration waited agreement, which a I n c . v. t h i s Court affirmed a t r i a l compel arbitration after Home C e n t e r , resulting of whether process so as arbitration. 1091561 Because in the we conclude record to that support there a is insufficient determination that evidence Ramsey was substantially p r e j u d i c e d by t h e d e f e n d a n t s ' belated assertion of t h e i r to a r b i t r a t i o n , the denying right the defendants' reversed. case i s due Ramsey's or We are to Pettway's on initial order the motion associated the of law to We to with t o any of those compel solely reverse we the the remand the compel the agreement, cause arbitration the the and 18 operates enforce the f i n d i n g s of fact denied of court's motion for that court in light scope of defendants. can basis circuit to defendants, i s s u e s but defendants' validity agreement p r o f f e r e d by on this authentic home, Aurora c o u r t d i d not p r o v i d e as is be whether subsequent nursing the arbitration denying arbitration. the whether circuit 2010, to must dispute signed agreement. Accordingly, parties agreement, admission motion The court however, whether the to defendants' determine, arbitration agreement nonsignatories or c o n c l u s i o n s compel circuit arbitration and The to of the whether retroactively, to arbitrated. signature forged, order motion unable be the of the the waiver. June to to the 23, compel consider issues arbitration 1091561 R E V E R S E D AND REMANDED Stuart, WITH I N S T R U C T I O N S . P a r k e r , and Wise, Shaw, J . , c o n c u r s J J . , concur. i n the result. 19