Redemptorists v. Coulthard Services, Inc.

ADKINS, Judge. In this appeal we are asked to define the scope and effect of a narrowly drafted arbitration provision on a dispute involving multiple overlapping issues, and multiple parties, some of whom are not parties to the agreement to arbitrate. We resolve the appeal by ascertaining that the parties intended to arbitrate only one issue, but recognizing the res judicata effect that arbitration of that issue may have on the overlapping nonarbitrable issues. The issues as to the non-contracting parties should be stayed pending the outcome of the arbitration.

The arbitration clause in question was contained in a contract between The Redemptorists, appellant, and Coulthard Services, Inc. (“CSI”), appellee, regarding CSI’s provision of cemetery services to cemeteries owned and operated by The Redemptorists. The latter brought suit in the Circuit Court for Baltimore County against CSI, and two of its principals, appellees Thomas Coulthard and Lee Dorman. CSI and Coulthard filed a petition to compel arbitration under the arbitration provision in the contract. 1 The court granted the petition as to both CSI and Coulthard, ordering that The Redemptorists’ claims against these two parties be arbitrated. The court also stayed The Redemptorists’ claims against Dorman until the conclusion of the arbitration. ¹²⁶ The following issues are raised in this appeal of the lower court’s decision: I. Should this Court grant CSI and Coulthard’s motion to dismiss this appeal as not properly before the Court?

II

Did the trial court err in granting Coulthard’s petition to order arbitration when Coulthard, individually, was not a .party to the contract between CSI and appellant that contained the arbitration provision?

III

Did the trial court err in finding that CSI and Coulthard had not waived their rights to arbitration?

IV

Did the trial court err in granting CSI and Coulthard’s petition to order arbitration of all of the claims raised in appellant’s amended complaint? V. Did the trial court err in staying the court action as to any non-arbitrable claims, including the claims against Dorman? Finding this appeal properly before us, we deny CSI and Coulthard’s motion to dismiss the appeal. In addressing the merits of the appeal, we hold that the court erred in granting appellant Coulthard’s petition to arbitrate because Coulthard was not a party to the contract containing the arbitration provision.

We further hold that the trial court correctly concluded that CSI had not waived its right to arbitrate the claims against it. We find error, however, in the trial court’s determination that all of The Redemptorists’ claims against CSI were arbitrable. Accordingly, we reverse the judgment in part. Because The Redemptorists’ challenge to the stay of the claims against Dorman is not properly before us, we will not address it.

FACTS AND LEGAL PROCEEDINGS The Redemptorists is a Maryland corporation with its principal office in Baltimore. The corporation is “a congregation of priests and religious [persons]” that owns and operates several cemeteries in Baltimore City, and Baltimore and Anne ¹²⁷ Arundel Counties. CSI is a Maryland corporation providing various cemetery services. Thomas Coulthard is CSI’s President, while Lee Dorman is a CSI officer. 2 The Redemptorists and CSI entered into a contract in 1990, whereby The Redemptorists granted CSI the “right to sell cemetery lots, monuments, markers, mausoleums, crypts, preneed burial contracts, including vaults and liners” on the grounds of two cemeteries owned by The Redemptorists.

In return, CSI agreed to pay The Redemptorists a certain percentage of the “gross sales price” of its products and services pertaining to these cemeteries. This payment was to be made on a quarterly basis. The contract term was amended in 1993 to bind the parties through August of 2000. The 1993 extension contract also provided that CSI would build mausoleum buildings at one of the cemeteries, at its own expense, and then turn the fee simple title of such buildings over to The Redemptorists.

The Redemptorists would receive a certain percentage of the sales price of crypts in the mausoleum buildings. The 1993 contract incorporated all the provisions of the 1990 contract. Under a section entitled “Grounds For Termination,” the 1990 contract granted CSI the right to arbitrate certain disputes. GROUNDS FOR TERMINATION.

Anything herein to the contrary notwithstanding, the Redemptorists shall have the right to terminate this Agreement for “cause” which shall be defined as including any of the following specific grounds: a. The refusal on the part of CSI to perform its duties under this Agreement after first having been given thirty (30) days prior written notice by the Redemptorists demanding such performance. b. Personal gross misconduct on the part of the principals of CSI that is deemed to have a material adverse effect ¹²⁸ on the reputation and integrity of the Redemptorists, Sacred Heart of Jesus Cemetery or Most Holy Redeemer Cemetery .... c. A material breach of this Agreement which shall include the failure of CSI for any reason, within thirty (30) days after receipt of written notice from the Redemptorists to correct, cease, or otherwise alter any insubordination, failure to comply with instructions, or other action or omission to act that in the opinion of the Redemptorists does or may materially or adversely affect its ownership and operation of its cemeteries. d.

The bankruptcy or insolvency of CSI. In the event CSI disputes the cause associated with any such discharge, then the parties agree to submit such dispute to binding arbitration in Baltimore, Maryland, pursuant to, the provisions of the Maryland Uniform Arbitration Act as set forth in the Courts & Judicial Proceedings Article of the Annotated Code of Maryland. (Emphasis added.) . All went smoothly under the contract until, in early 1999, The Redemptorists, requested to review CSI’s records and accounts related to the cemetery. properties.

Through this review, The Redemptorists allegedly discovered that CSI owed it $800,000, which it had not remitted as required under the terms of the contract. Thereafter, The Redemptorists sent a letter to CSI, giving it 30 days to cure the breach, i.e., to pay the sum allegedly owed. When this 30 day period lapsed, The Redemptorists terminated its contract with CSI under the “Grounds For Termination” provision set forth above. On February 14, 2000, The Redemptorists filed a complaint against CSI alleging breach of contract and conversion.

Based on this complaint, CSI filed a motion for a more definite statement and a motion to dismiss for lack of jurisdiction. While CSI’s motions' were still pending, - The Redemptorists filed a First Amended Complaint (“the complaint”) on July 17, 2000, in the Circuit Court for Baltimore County. The amend ¹²⁹ ed complaint added Thomas Coulthard and Lee Dorman, two of CSI’s principals, as defendants, and alleged six separate counts rather than the two featured in the original complaint. COUNT I alleged breach of contract against CSI.

COUNT II alleged fraud against CSI and Coulthard for misrepresenting “a) the total number and nature and extent of the sales contracts CSI had obtained related to [t]he ... cemeteries; b) the correct dollar amounts of the sales contracts CSI obtained related to [t]he ... cemeteries; c) the correct amount of monies, commissions, liabilities due to The Redemptorists; [and] d) the correct amount of perpetual care funds due The Redemptorists.” COUNT III claimed constructive fraud against CSI and Coulthard. It alleged that CSI and Coulthard had breached their fiduciary duty to The Redemptorists by “misrepresenting and failing to disclose a) the total number and nature and extent of the sales contracts CSI had obtained related to [t]he ... cemeteries; b) the correct dollar amounts of the sales contracts CSI obtained related to [t]he ... cemeteries; c) the correct amount of monies, commissions, liabilities due to The Redemptorists; and d) by failing to escrow and remit to The Redemptorists those funds due The Redemptorists ...; and e) by appropriating corporate funds for the personal use of the stockholders rather than remitting monies owed to The Redemptorists.” COUNT IV claimed fraudulent conveyance against all three appellees (CSI, Coulthard, and Dorman), alleging that, instead of remitting the monies owed to The Redemptorists, a debt of which it was aware, “CSI conveyed substantial assets to ... Coulthard and Dorman thereby rendering itself unable to pay its liabilities to The Redemptorists.” COUNT V claimed unjust enrichment against all three appellees. It alleged that appellees “improperly withheld monies from The Redemptorists” and that to allow appellees to retain the benefit of this withholding would be “inequitable and unjust[.]” ¹³⁰ COUNT VI, a conversion count against CSI and Coulthard, concerned alleged actions by appellees after the termination of the contract.

It alleged that, even after its contract was terminated, CSI sold “niches” in the mausoleums without notifying The Redemptorists, which already had sold those niches to others. Each of these counts requested the same $800,000 measure of damages. . Shortly thereafter, on August 22, CSI and Coulthard filed a Petition To Order Arbitration, asserting that the arbitration provision in the contract covered all of The Redemptorists’ claims against them. On September 15, The Redemptorists filed a Petition To Stay Arbitration.

After a hearing, the circuit court, on May 15, 2001, granted CSI and Coulthard’s petition, ordering arbitration of all claims against those defendants. The court also stayed all claims against appellee Dorman until the arbitration was concluded. We will include, in our discussion below, additional facts as they pertain to specific issues raised in this appeal. DISCUSSION I. The Redemptorists’ Appeal Is Properly Before This Court Before proceeding to the merits of the appeal, we shall address CSI and Coulthard’s contention, made in the form of a motion to dismiss appended to their brief, that this appeal was prematurely filed, and thus is not properly before us.

After the court issued its May 15, 2001 order granting CSI and Coulthard’s petition to order arbitration, The Redemptorists filed a motion to alter or amend the judgment on May 25. On June 14, while its revisory motion was still pending, The Redemptorists filed its notice of appeal to this Court. Thereafter, the trial court denied,the motion to alter or amend, but entered a more specific order explaining its decision. ¹³¹ The Redemptorists filed its motion to alter or amend the judgment under Md. Rule 2-534. Rule 2-534.

Motion to alter or amend a judgment— Court decision. In an action decided by the [circuit] court, on motion of any party filed within ten days after entry of judgment, the court may open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the decision, may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment, or may enter a new judgment. Md. Rule 8-202 sets forth the timing requirements for noting an appeal from an order or judgment. It provides, in relevant part: (a) Generally.

Except as otherwise provided in this Rule or by law, the notice of appeal shall be filed within 30 days after entry of the judgment or order from which the appeal is taken.... (c) Civil action—Post judgment motions. In a civil action, when a timely motion is filed pursuant to Rule ... 2- 534, the notice of appeal shall be filed within 30 days after entry of (1) a notice of withdrawing the motion, or (2) an order ... disposing of the motion pursuant to Rule ... 2- 534. A notice of appeal filed before the withdrawal or disposition of [the motion] . .. does not deprive the trial court of jurisdiction to dispose of the motion.

The Court of Appeals’ decision in Edsall v. Anne Arundel County, 332 Md. 502 , 632 A.2d 763 (1993), directly refutes the claim by CSI and Coulthard that The Redemptorists’ appeal here was prematurely filed. In Edsall , a final judgment against the Edsalls was entered on February 28. Nine days later, the Edsalls filed a motion to alter or amend the judgment. While their motion was still pending, the Edsalls filed a notice of appeal in this Court under Md. Rule 2-534.

Thereafter, the Edsalls’ motion to alter or amend the judgment was denied. The Edsalls did not file any subsequent notice of appeal. ¹³² In arguing that the appeal should be dismissed, the defendant in Edsall asserted that the Edsalls’ notice of appeal, filed while their revisory motion was still pending, was “ineffective because the finality of the judgment had been interrupted by the timely filing of the motion to alter or amend the judgment.” Id. at 503-04 , 632 A.2d 763 . In answering our certified question regarding whether a notice of appeal filed “prior to the withdrawal or disposition” of a revisory motion is sufficient to constitute a timely appeal, the Court of Appeals explained: The notice of appeal, if otherwise effective under the provisions of Rule 8-202(a), will not lose its efficacy because a timely post-judgment motion is filed or is pending, but its effect will be delayed until the trial court rules on the pending motion, or it is withdrawn!.] Id. at 506 , 632 A.2d 763 . Similarly, in Bd. of Liquor License Comm’rs for Baltimore City v. Fells Point Café, Inc., 344 Md. 120 , 685 A.2d 772 (1996), after the entry of a final judgment, the Board filed several motions to reconsider.

It filed a notice of appeal while these motions to reconsider were still pending. Citing its decision in Edsall , the Court of Appeals held that the Board’s notice of appeal did not lose its effectiveness simply because the Board filed a post-judgment motion. See id. at 134, 685 A.2d 772 . Therefore, the Board’s appeal was held to be timely filed, and properly before the Court.

See id. Here, as in Edsall and Fells Point Café, the filing of a post-judgment motion did not render The Redemptorists’ timely notice of appeal ineffective. It merely delayed the effect of that notice of appeal until after the resolution of the motion. CSI and Coulthard argue that this case is distinguishable from both Edsall and Fells Point Café, because in those cases the denial of the timely filed revisory motion was not by way of a complete memorandum opinion and order which clarified and essentially replaced the prior order.

That is, if the trial court’s denial of the motion to alter or amend judgment does not alter the character of the prior judgment, there ¹³³ would be no need to renew an appeal filed prior to disposition of that revisory motion. This did not occur here. We reject this argument because we see no such limitation in the rule pronounced by the Court of Appeals in both Edsall and Fells Point Café. 3 The Redemptorists filed a timely notice of appeal from the May 15 final judgment, and its appeal is properly before this Court. We find the other cases cited by CSI and Coulthard in support of their motion to dismiss to be distinguishable.

In Carr v. Lee, 135 Md.App. 213 , 762 A.2d 142 (2000), cert. denied, 363 Md. 206 , 768 A.2d 54 (2001), we held that there was no final judgment from which to appeal because the trial court, in ruling orally from the bench, “not only contemplated that a written order would be executed, and expressly indicated that its decision was not final,” it also failed to decide all the issues, merely “outlining] its thoughts and conclusions” from the bench. Id. at 223 , 762 A.2d 142 . Unlike Carr, here the trial court’s May 15 order was a written order, and disposed of all the issues raised in the petition to order arbitration. Makovi v. Sherwin-Williams Co., 311 Md. 278 , 533 A.2d 1303 (1987), is also distinguishable.

In Makovi , the Court of Appeals held that an order granting the defendant’s motion for summary judgment, but giving the plaintiff 30 days to file an amended complaint, was not a final order, and thus an appeal from such an order was premature. See id. at 281-83 , ¹³⁴ 533 A.2d 1303 . The trial court’s order in this case had no such express provision affecting its finality. Finding this appeal properly before us, we deny CSI and Coulthard’s motion to dismiss and move on to address the substantive merits of the appeal.

II

The Trial Court Erred In Granting Coulthard’s Petition To Order Arbitration The Redemptorists argue that the trial court erred in granting appellee Coulthard’s petition to order arbitration of the claims against him because Coulthard was not a party to the contract between CSI and The Redemptorists that contained the arbitration provision. Therefore, it asserts, Coulthard has no right to arbitration of the claims against him individually. 4 “Arbitration is the process whereby parties voluntarily agree to substitute a private tribunal for the public tribunal otherwise available to them.” Gold Coast Mall, Inc. v. Larmar Corp., 298 Md. 96, 103 , 468 A.2d 91 (1983). Therefore, “[a] party cannot be required to submit any dispute to arbitration that it has not agreed to submit.” Id. “Arbitration is ‘consensual; a creature of contract. As such, only those who consent are bound....

In the absence of an express arbitration agreement, no party may be compelled to submit to arbitration in contravention of its right to legal process.’ An arbitration agreement cannot impose obligations on persons who are not a party to it and do not agree to its terms.” Hartford Accident & Indemn. Co. v. Scarlett Harbor Assocs. Ltd. P’ship, 346 Md. 122, 127 , 695 A.2d 153 (1997) (citations omitted); see also Curtis G. Testerman Co. v. Buck, 340 Md. 569, 579-80 , 667 A.2d 649 (1995)(trial court erred in forcing ¹³⁵ president of contracting company to arbitrate homeowners’ claims against him individually when he was not party to contract between homeowners and company that contained arbitration provision). Applying these principles, we hold that the trial court erred in granting Coulthard’s petition to compel arbitration of The Redemptorists’ claims against him, because there was no agreement between The Redemptorists and Coulthard to arbitrate, only an agreement between The Redemptorists and CSI.

In doing so, we reject CSI and Coulthard’s contention that, despite the fact that a party cannot be compelled to arbitrate, there is nothing preventing a party from joining in a pending arbitration proceeding as to a claim against that party based on the same facts and circumstances as the claims before the arbiter, even if that party did not sign the contract. Since arbitration is a “voluntary” process, there is no impediment to a party “voluntarily” deciding to be part of that process. Their argument, frankly, misses the point. Coulthard is not merely “voluntarily” consenting to arbitration of the claims against him.

He is attempting, by filing a petition to order arbitration, to compel The Redemptorists, against its will, to arbitrate claims it never agreed to arbitrate. This action violates the spirit of arbitration, as outlined in the principles laid out above. The trial court erred in granting Coulthard’s petition to order arbitration of The Redemptorists’ claims against him. On remand, the court should consider whether a stay of The Redemptorists’ claims against Coulthard, pending arbitration with CSI, is appropriate.

See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 , 20 n. 23, 103 S.Ct. 927 , 939 n. 23, 74 L.Ed.2d 765 (1983)(“In some cases, ... it may be advisable to stay litigation among the nonarbitrating parties pending the outcome of the arbitration. That decision is one left to the [lower] court ... as a matter of its discretion to control its docket”). ¹³⁶ III. CSI Did Not Waive Its Contractual Right To Arbitrate The Redemptorists asserts that the trial court erred in finding that CSI and Coulthard had not waived any right they might have had to arbitrate the claims against them.

Because we hold that Coulthard had no contractual right to arbitrate in the first place, we need not decide whether Coulthard waived that right. Therefore, we focus solely on the actions and intentions of CSI. The Redemptorists puts forth three “circumstances” that it believes support an inference of waiver on the part of CSI: (1) “the un-timeliness and lack of any arbitration filing” by CSI; (2) CSI’s filing of a motion to dismiss The Redemptorists’ complaint; and (3) the allegation that CSI “continued’ to conduct business relative, to [one of the cemeteries] after July 31, 1999,” when The Redemptorists terminated its contract with CSI. CSI disputes this challenge, asserting that there is no evidence to indicate that it “intentionally” relinquished its right to arbitrate, as required under waiver law. “Because the right to arbitrate is a matter of contract, it is possible for parties to waive that right.” Charles J. Frank, Inc. v. Associated Jewish Charities of Baltimore, Inc., 294 Md. 443, 448 , 450 A.2d 1304 (1982).

A waiver is the intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right, and may result from an express agreement or be inferred from the circumstances. “[A]cts relied upon as constituting a waiver of the provisions” of a contract must be inconsistent with an intention to insist upon enforcing such provisions. BarGale Indus., Inc. v. Robert Realty Co., 275 Md. 638, 643 , 343 A.2d 529 (1975). “The intention to waive must be clearly established’ and will not be inferred from equivocal acts or language.” Charles J. Frank, 294 Md. at 449 , 450 A.2d 1304 . ¹³⁷ “Whether or not there has been a waiver of such a right under a contract is generally a question of fact.” 5 BarGale Indus., 275 Md. at 644 , 343 A.2d 529 . We will reverse the factual findings of the trial court only if clearly erroneous. See RTKL Assocs., Inc. v. Four Villages Ltd. P’ship, 95 Md.App. 135, 138 , 620 A.2d 351 , cert. denied, 331 Md. 87 , 626 A.2d 371 (1993).

We review the trial court’s finding that CSI did not waive its contractual right to arbitrate under this standard. The parties, for the most part, cite in support of their respective positions the same cases dealing with waiver of a contractual right to arbitration. Because there is no “bright-line” test for determining waiver, and since the determination of what conduct constitutes an “intentional relinquishment” of one’s right to arbitrate is highly factually-dependent, we will review the cases in this area to gain a better sense of the conduct that has been adjudged in the past to effect a waiver. Against this spectrum of cases, we then will compare the three allegations of waiver raised in this case.

A. Background Caselaw Governing Waiver Of A Contractual Right To Arbitrate “[0]ne who litigates an issue that otherwise would be subject to arbitration waives his right subsequently to arbitrate that issue.” Stauffer Constr. Co. v. Bd. of Educ. of ¹³⁸ Montgomery County, 54 Md.App. 658, 667 , 460 A.2d 609 (1983). In Charles J. Frank , the Court of Appeals affirmed the trial court’s finding that a contractor had waived its right to arbitrate certain claims when it filed a third-party claim against the project owner, the project owner filed an answer on the merits, and a final judgment on an arbitrable matter was obtained, all without any demand for arbitration. See Charles J. Frank, 294 Md. at 450 , 450 A.2d 1304 .

The Court held, however, that the waiver was only as to the right to arbitrate the claim litigated, and did not extend to other unrelated issues arising under the contract between the contractor and the owner. While ... [participation in a judicial proceeding that resulted in a final judgment on an isolated set of issues] constituted a waiver of the right to arbitrate those issues, it was not necessarily inconsistent with an intention to enforce the right to arbitrate other unrelated issues arising under the same contract with the owner. Such conduct was, therefore, too equivocal, in and of itself, to support an inference that the contractor had waived the right to arbitrate issues other than those raised and decided in the ... [litigation]. There was no other probative evidence to show that the contractor intended to waive the right to arbitrate unrelated issues.

Id. at 454-55 , 450 A.2d 1304 . Therefore, the Court of Appeals reversed the trial court’s finding that the waiver extended to contract claims unrelated to the issues litigated. See id. In Stauffer, the parties raised the issue of waiver by failure to timely demand arbitration before the circuit court, but the court did not decide the issue.

Instead, it overreached its jurisdiction by adjudicating substantive issues as to the validity of the underlying claims themselves, rather than simply the arbitrability of those claims. Therefore, we vacated the trial court’s judgment and remanded the case in order for the trial coui’t to make findings as to whether the party requesting arbitration had waived its right to arbitration by not timely demanding it. See Stauffer, 54 Md.App. at 672 , 460 A.2d 609 . Thus, Stauffer does not offer us much guidance, because we ¹³⁹ did not decide whether waiver had occurred under the circumstances of that case.

In RTKL Assocs., we affirmed the trial court’s finding that a party who waited five years before demanding arbitration had waived its right to do so. That party, however, in the meantime, had engaged itself in the litigation by filing cross-claims and participating in depositions - and other discovery, thereby exhibiting behavior inconsistent with the intention to arbitrate. See RTKL Assocs., 95 Md.App. at 144-45 , 620 A.2d 351 . Gold Coast Mall involved a similar “waiver by failure to request arbitration” argument made by a landlord against a tenant.

There, the arbitration provision stated that “in the event of disagreement between the parties ... which they are unable to resolve within sixty days ... such disagreement shall be submitted ... to ... arbitration!.]” Gold Coast Mall, 298 Md. at 101-02 , 468 A.2d 91 . It further provided that “within fifteen (15) days after the 60-day negotiation time” each party “shall appoint one arbitrator” to sit on a three-arbitrator panel charged with resolving the dispute. The trial court found that the tenant had waived his right to arbitrate by not initiating arbitration within fifteen days of the expiration of the sixty-day negotiation period. Reversing this Court, the Court of Appeals held that the trial court’s waiver finding was clearly erroneous.

We are persuaded that a party against whom a claim is asserted, and who is not therefore seeking relief, does not have an obligation to initiate arbitration.... Because the landlord was asserting a claim, it was the landlord’s and not the tenant’s initial obligation to initiate arbitration. The landlord, however, did not initiate arbitration. Rather, it sought relief by asserting its claim in the trial court.

This action by the landlord constituted a refusal to arbitrate. In the trial court the tenant did not file an answer on the merits. Rather, it filed a motion raising preliminary objection on the ground that the agreement required arbitration of the ... dispute and filed a petition to compel arbitration. ¹⁴⁰ Under these circumstances, the tenant did not engage in any conduct inconsistent with an intention to insist upon enforcing the right to arbitrate. Accordingly, the tenant did not waive the right to arbitrate the ... dispute.

Id. at 113-15 , 468 A.2d 91 . In addition to the cases above, cited by both The Redemptorists and CSI, CSI cites two additional cases for our consideration. 6 Horsey v. Horsey, 329 Md. 392 , 620 A.2d 305 (1993), concerned a separation agreement. This agreement provided for arbitration of any dispute as to “the matter of any reduction or subsequent increase in alimony payments!)]” Id. at 395 , 620 A.2d 305 . Because both parties filed pleadings in the circuit court, stated through their attorneys at trial that the arbitration clause in the contract had been waived, and had never requested arbitration, the Court of Appeals held that the parties had “unequivocally waived their contractual right to arbitration as a means for resolving their dispute” by failing to request arbitration at any time during the court proceedings and engaging in actions “ ‘inconsistent with an intention to insist upon enforcing’ their right to arbitrate.” Id. at 407 , 620 A.2d 305 .

Therefore, the Court of Appeals reversed the trial court’s order to arbitrate the parties’ dispute. See id. at 406 , 620 A.2d 305 . Similarly, in NSC Contractors, Inc. v. Borders, 317 Md. 394 , 564 A.2d 408 (1989), the Court of Appeals affirmed the trial court’s finding that the parties had waived their right to arbitrate the claim because neither party had demanded arbitration at trial, and one party “stated in the petition for a writ of certiorari that the parties voluntarily waived their right to arbitration,” ánd the other party did not refute this claim. See id. at 402 , 564 A.2d 408 .

With this authority in mind, we turn now to the three “circumstances” alleged by The Redemptorists to constitute waiver of CSI’s contractual right to arbitrate the claims against it. ¹⁴¹ B. Specific Allegations Of Waiver In This Case 1. Timeliness Of Arbitration Filing The Redemptorists first argue that, by failing to “file a claim in arbitration disputing the ‘cause’ of [its] termination” in the “approximately 2}¡¿ years” since the contract was terminated, CSI has waived any right it might have had to arbitrate the claims against it. The timeliness of a claim to arbitrate is a proper issue for the court, not the arbitrator, insofar as it “requires a determination of whether an agreement to arbitrate still exists based on possible waiver[.]” See Rosecroft Trotting & Pacing Ass’n, Inc. v. Electronic Race Patrol, Inc., 69 Md.App. 405, 413 , 518 A.2d 137 (1986). In light of the authorities cited, we do not believe that the delay in demanding arbitration constituted an intentional relinquishment by CSI of its right to arbitrate the claims against it.

Neither party cites a case that concerned a circumstance in which a court found waiver due solely to delay. In all of the waiver cases, the party seeking to enforce its right to arbitrate had engaged itself substantially in the judicial forum, by at least filing an answer to the complaint against it. The facts of this case are not so definitive. Furthermore, the major portion of the six months between the filing of the initial complaint and the filing of the petition to order arbitration was spent clarifying the scope of the complaint.

Significantly, less than a month passed between The Redemptorists’ July 17, 2000 filing of its first amended complaint, which was significantly more specific than the initial complaint and added five additional claims, and CSI’s August 22 filing of its petition to order arbitration. Waiting for a more specific statement of the claims against it, in order to determine whether those claims fell within the scope of the arbitration provision in the contract, is not inconsistent with enforcing that right to arbitrate once the full scope of the ¹⁴² claims became known. The delay in demanding arbitration was understandable under the circumstances, and did n ot constitute waiver of any right CSI might have to arbitrate the claims against it. The trial court was not clearly erroneous in finding that CSI had not waived its contractual right to arbitrate through its delay in requesting arbitration. 2.

Participation In Litigation The Redemptorists also assert that CSI waived its right to arbitrate the claims against it by filing a motion to dismiss The Redemptorists’ complaint, and participating in other ways in the litigation. According to The Redemptorists, CSI attempted to “draw out” the proceedings by engaging in “procedural posturing.” It also claims that CSI engaged in other actions consistent with waiver, such as “attach[ing] a certification document to its [motion to dismiss] outside the four corners of the complaint, thereby transforming the motion [in]to a motion for summary judgment,” and asking in its proposed order on the motion that “the case be dismissed with prejudice.” Here, unlike in Charles J. Frank , CSI did not engage wholeheartedly in the judicial forum. CSI filed a motion to dismiss The Redemptorists’ initial complaint for lack of jurisdiction on June 22, 2000. In that motion, CSI alleged that The Redemptorists was a foreign corporation, and had failed to “qualify” with the State Department of Assessments and Taxation (“SDAT”) under Maryland Code (1975, 1999 Repl.

VoL), section 7-208 of the Corporations and Associations Article, by certifying to SDAT its business address and the name and address of its resident agent in Maryland, and, as such, was barred from bringing suit in Maryland courts. It attached a certified statement from an SDAT official verifying that “there is no record of a foreign or domestic corporation by the name of The Redemptorist Fathers.” As it turned out, the corporation was registered in Maryland as simply “The Redemptorists,” rather than “The Redemptorist Fathers,” as ¹⁴³ stated in the initial complaint. Nevertheless, according to The Redemptorists, the act of attaching this certification to its motion to dismiss for lack of jurisdiction transformed that motion into a motion for summary judgment and, as such, catapulted CSI into the judicial forum, resulting in waiver of any right to arbitrate the claims against it. Significantly, however, the substantive merit of this motion was never addressed, because it became moot after The Redemptorists filed their first amended complaint, this time identifying itself more accurately as “The Redemptorist[s] ... also paternally referred to from time to time as The Redemptorist Fathers!.]” We do not consider the act of filing a motion to dismiss on a jurisdictional ground to be an unequivocal demonstration by CSI that it intended to waive its right to arbitrate the claims against it, and to participate instead in a judicial forum.

CSI’s motion did not address the merits of the claims in the initial complaint. It was limited to what it perceived as a procedural flaw in the complaint that, if meritorious, could have disposed of the court’s jurisdiction to consider the complaint. It was not a case, as in Charles J. Frank , for example, in which the party participated in full-fledged litigation of an arbitrable claim, resulting in a final disposition by a judicial officer. The facts of this case are also distinguishable from RTKL Assocs., in which the party seeking to enforce its right to arbitration previously had filed an answer to the complaint against it, as well as cross-claims and other pleadings addressing substantive issues.

The trial court was not clearly erroneous in concluding that CSI’s limited participation in the judicial forum did not constitute a waiver of its right to arbitrate the claims against it. 3. Alleged Failure To Stop All Activities Under The Contract Upon Contract Termination The Redemptorists’ final argument for waiver is that “despite The Redemptorists’ termination of] the [c]ontract, ¹⁴⁴ CSI continued to conduct business relative to” one of The Redemptorists’ cemeteries. Additionally, the Redemptorists argue that CSI should be “estopped from challenging the very discharge which [it] ignored.” There is a dispute between the parties as to whether CSI actually continued to conduct business concerning The Redemptorists’ cemeteries after the termination of its contract in July 1999. Because of the limited scope of our review in arbitration matters, see Rosecroft Trotting, 69 Md.App. at 409 , 518 A.2d 137 , we will not decide whether such conduct actually occurred.

Rather, we hold that, even assuming that CSI continued operating under the contract after its termination, such conduct was not consistent with an intentional relinquishment of its contractual right to arbitrate, and thus would not constitute waiver. To the contrary, it may be viewed as a continued challenge to the propriety of that termination. VL The Trial Court’s Determination That All Claims Against CSI Were Arbitrable Was Overly Broad The Redemptorists also assert error in the. trial court’s interpretation of the arbitration provision, to encompass all of its claims against CSI and Coulthard, leading to its decision to grant CSI and Coulthard’s petition to order arbitration. As with the waiver issue, because we