When the appellant fails to provide an adequate record for review, the Appellate Court presumes that the trial court acted properly. In May of 2006, MSO, LLC, brought suit concerning a commercial lease against Anthony Simone and Charles DeSimone, Jr., in their personal capacities and as co-executors of the estate of Charles DeSimone. The plaintiff alleged that the defendants unlawfully withheld consent to assign the lease. The defendants filed four motions for nonsuit alleging the plaintiff's continued failure to respond to discovery requests. On Dec. 16, 2008, the defendants filed a motion to stay the proceedings and for an order to proceed to arbitration pursuant to an arbitration clause in the lease agreement. The plaintiff objected. The trial court granted the motion and ordered the parties to proceed to arbitration. The plaintiff appealed arguing that the court improperly ordered the parties to proceed to arbitration because the court failed to find that the defendants had waived their right to enforce the arbitration clause by engaging in extensive litigation. The majority of the Appellate Court concluded that the plaintiff failed to provide the court with an adequate record for review and affirmed the judgment. The majority could not conclude that the trial court made a finding on the issue of waiver. The court's ruling amounted to a few sentences in which the court did not mention the issue of waiver. The plaintiff did not file a motion for articulation. Absent an adequate record for reviewing the factual claims made, the majority concluded that the trial court undertook the proper analysis of the law and facts in directing the parties to proceed to arbitration. Judge Beach dissented. He found that the trial court implicitly held that the defense of waiver by conduct is immaterial whenever there is an arbitration clause in a contract. Under the circumstances, Judge Beach found the record adequate for review. He would reverse the judgment and remand the case.

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