Kalai

David Kalai appeals from a judgment entered against him on his claim for damages against Timothy Lee Gray. The trial court granted summary judgment in favor of Gray on the ground that the parties had agreed to submit their dispute to arbitration, and Kalai failed to exhaust that arbitration remedy. Kalai does not challenge the court’s basic premise that the parties had an enforceable arbitration agreement, but instead focuses on two more specific issues. First, Kalai asserts the court erred by including in the judgment an express determination that Kalai waived his right to arbitrate by filing a lawsuit in court, thus preventing Kalai from litigating the merits of his claim in any forum. Second, Kalai contends the court erred in awarding attorney fees to Gray, despite the fact the parties’ agreement provided for such an award only in favor of the “prevailing party to [the] Arbitration.”

We agree with Kalai on both counts. A party who enters into a predispute agreement to arbitrate does not waive his right to resort to that forum merely because he first attempts to air his grievance in court. At most, such an effort might lead to a waiver of that party’s right to…