The untimely assertion of the right to arbitration raises three potential scenarios: (1) a repudiation/waiver; (2) the failure of a procedural condition; or (3) the failure of a condition precedent to activating the clause. City of Cottonwood v. James L. Fann Contracting, Inc., 179 Ariz. 185, 189, 877 P.2d 284, 288 (App. 1994). A condition precedent must be performed before the contract becomes effective.

Federal waiver doctrine is consistent with generally applicable state laws of waiver. See, e.g., Van Ness Townhouses v. Mar Indus. Corp., 862 F.2d 754, 758 (9th 1999); Hoffman Constr. Co. v. Active Erectors Installers, Inc., 969 F.2d 796 (9th Cir. 1992). Pursuant to Arizona law, waiver is demonstrated by an express, voluntary, and intentional relinquishment of a known right, or by " conduct so inconsistent with an intent to assert the right that an intentional relinquishment can be inferred."City of Cottonwood v. James L. Fann Contracting, Inc., 179 Ariz. 185, 189, 877 P.2d 284, 290 (Ct.App. 1994) (emphasis added). A party waives its right to enforce an appraisal right by expressly waving the right; or by acquiescing in the other party's repudiation of the agreement to submit to an appraisal process; or by acting in a manner inconsistent with submitting to or enforcing a requirement to submit to appraisal, including preventing an appraisal, disregarding an instigated appraisal, or unreasonably delaying any requested submission to an agreement for an appraisal.

Whether conduct amounts to waiver of the right to arbitrate is a question of law we review de novo. See City of Cottonwood v. James L. Fann Contracting, Inc., 179 Ariz. 185, 189 n. 2, 877 P.2d 284, 288 n. 2 (App. 1994); Rancho Pescado, Inc. v. Nw. Mut. Life Ins. Co., 140 Ariz. 174, 180, 680 P.2d 1235, 1241 (App. 1984). Public policy favors arbitration and thus, the burden is heavy on the party seeking to prove waiver of an agreement to arbitrate.

Thorp argues the question of arbitrability should be decided initially by the arbitrators, not the court. She relies on City of Cottonwood v. James L. Fann Contracting, Inc., 179 Ariz. 185, 877 P.2d 284 (App. 1994). In Cottonwood, we held the question of the timeliness of a party's demand for arbitration should be decided by the arbitrator.

¶61 "Because of the trial court's proximity to the matter and its better familiarity with the parties, the suit, and the issues, an appellate court is usually reluctant to overturn its ruling on attorney[s'] fees . . . [and] will uphold the exercise of that discretion if the record contains a reasonable basis to do so." City of Cottonwood v. James L. Fann Contracting, Inc., 179 Ariz. 185, 194-95, 877 P.2d 284, 293-94 (App. 1994). Although fees should not be awarded against a party for distinct claims that could have been litigated separately, id. at 195, 877 P.2d at 294, fees may be awarded when claims are "inextricably interwoven," Modular Mining Sys., 221 Ariz. at 522, ¶ 23, 212 P.3d at 860.

The court states only that "arbitration proceedings are quasi-judicial in nature," and reaches no holding whatsoever in regards to whether arbitrations are "actions." The final case, City of Cottonwood v. James L. Fann Contracting, Inc., 179 Ariz. 185, 194, 877 P.2d 284, 293 (App. 1994), deals with fees awarded, not for the arbitration itself, but for the defense for an initial stay proceeding in court. Cottonwood is relevant, however, in that the award may have included some fees stemming from the arbitration hearing itself.

This court has recently considered the issue of repudiation and waiver of an arbitration clause. City of Cottonwood v. James L. Fann Contracting Inc., 179 Ariz. 185, 877 P.2d 284 (App. 1994). We stated: "The issue of untimeliness is complicated.

"[P]roof of waiver requires showing conduct inconsistent with the arbitration remedy. . . . Inconsistency usually is found when one party engages in conduct preventing arbitration, proceeds at all times in disregard of arbitration, expressly agrees to waive arbitration, or unreasonably delays requesting arbitration." City of Cottonwood v. James L. Fann Contracting, Inc., 877 P.2d 284, 289-290 (Ariz.App. 1994) (footnote omitted) ( citing EFC Develop. Corp. v. F.F. Baugh Plumbing Heating, Inc., 540 P.2d 185 (1975)). See also Bolo Corp. v. Homes Son Constr. Co., 464 P.2d 788, 793 (Ariz.

"[P]roof of waiver requires showing conduct inconsistent with the arbitration remedy. . . . Inconsistency usually is found when one party engages in conduct preventing arbitration, proceeds at all times in disregard of arbitration, expressly agrees to waive arbitration, or unreasonably delays requesting arbitration." City of Cottonwood v. James L. Fann Contracting, Inc., 877 P.2d 284, 289-290 (Ariz.App. 1994) (footnote omitted) ( citing EFC Develop. Corp. v. F.F. Baugh Plumbing Heating, Inc., 540 P.2d 185 (1975)). See also Bolo Corp. v. Homes Son Constr. Co., 464 P.2d 788, 793 (Ariz.

It was Trifecta, however, who waived or repudiated the arbitration provisions by seeking redress of damages in court, rather than seeking to compel arbitration. See Meineke v. Twin City Fire Ins. Co., 181 Ariz. 576, 582, 892 P.2d 1365, 1371 (1994) ("[A] party's filing of a lawsuit without invoking arbitration . . . would nearly always indicate a clear repudiation of the right to arbitrate . . .") ; Bolo Corp. v. Homes Son Constr. Co., 105 Ariz. 343, 347, 464 P.2d 788, 792 (1970) (by seeking redress through the court system, party acquiesced in rejection of arbitration clause and waived right to compel arbitration); Cooper v. QC Fin. Servs., Inc., 503 F. Supp. 2d 1266, 1274 (D. Ariz. 2007) (a party to a contract may waive its right to enforce an arbitration agreement by its conduct) ; City of Cottonwood v. James L. Fann Contracting, Inc., 179 Ariz. 185, 190-91, 877 P.2d 284, 289-90 (1994) ("[P]roof of waiver requires showing conduct inconsistent with the arbitration remedy. . . . Inconsistency usually is found when one party engages in conduct preventing arbitration, proceeds at all times in disregard of arbitration, expressly agrees to waive arbitration, or unreasonably delays requesting arbitration."); U.S. Insulation, Inc. v. Hilro Constr. Co., 146 Ariz. 250, 254, 705 P.2d 490, 494 (Ct. App. 1985) (same). Trifecta's delayed claim is also evidence of a repudiation of the arbitration clause.