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Erdman Company; Erdman Architecture & Engineering Company v. Phoenix Land & Acquisition, LLC; Phoenix Health, LLC; et al.

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Submitted: March 29, 2011

Before LOKEN, SMITH, and GRUENDER, Circuit Judges.

Erdman Company (“Erdman”) and Erdman Architecture & Engineering Company (“EAEC”) filed this diversity action to foreclose a contractor’s lien and an architect’s and engineer’s lien against Phoenix Land & Acquisition, LLC (“Phoenix Land”), and Phoenix Health, LLC (“Phoenix Health”), as owners of the property, and three financial institutions with recorded security interests in the property. Phoenix Land filed a counterclaim, asserting breach of contract, negligence, breach of implied warranty, breach of fiduciary relationship, and deceptive trade practices by Erdman, and negligence by EAEC. Erdman and EAEC now appeal the district court’s*fn1 order denying their motion to compel arbitration of Phoenix Land’s counterclaim. We have jurisdiction over an appeal from an interlocutory order “denying an application . . . to compel arbitration.” 9 U.S.C. § 16(a)(1)(C). The district court held that Erdman waived the right to arbitrate by evidencing its intent to resolve the entire dispute through litigation. Reviewing the waiver determination de novo but the district court’s underlying factual findings for clear error, we affirm. See Lewallen v. Green Tree Servicing, L.L.C., 487 F.3d 1085, 1090 (8th Cir. 2007) (standard of review).

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