Ex parte Mountain Heating and Cooling, Inc.

867 So.2d 1112

Ex parte MOUNTAIN HEATING AND COOLING, INC.

(In re Mountain Heating and Cooling, Inc. v. Van Tassel-Proctor, Inc.)

1011835.

Supreme Court of Alabama.

May 2, 2003.

Jim H. Fernandez of Fernandez, Holtz & Combs, LLC, Mobile, for petitioner.

Submitted on petitioner's brief only.

PER CURIAM.

Mountain Heating and Cooling, Inc. ("MHC"), petitioned for a writ of certiorari to review the Court of Civil Appeals' affirmance of the trial court's order compelling arbitration in its contract action against Van Tassel-Proctor, Inc. ("VTP"). We granted the petition to determine if certain ambiguities in the contract cast doubt on whether the parties agreed to arbitrate their disputes. We reverse and remand.

I. Facts

VTP, an Arkansas corporation, is the primary contractor for a Carmike Cinema construction project located at Springdale Mall in Mobile, Alabama. VTP contracted with MHC, a subcontractor, to do the heating, ventilation, and air conditioning work for the project. MHC is an Alabama corporation. The contract signed by the parties contained an arbitration provision that states, in pertinent part:

"B) ARBITRATION: Subcontractor [MHC] agrees that all questions arising under this Subcontract shall be resolved in the first instance by Contractor's [VTP's] Project Manager.... Any claim not satisfactorily resolved by Contractor's Project Manager in the first instance, and which is presented in writing within the time provided, may be appealed by notice in writing to ... an Executive Officer of the Contractor if any other question under the Subcontract is involved. Such written notice and review shall be prerequisite to any further review or any legal action by the Subcontractor against the Contractor, Architect, and/or Owner. And if said dispute cannot be settled through direct discussions the parties agree to settle the dispute by arbitration under the Construction Industry Mediation Rules of the American Arbitration Association. Subcontractor agrees that it will reimburse, hold harmless and/or indemnify any attorney's fees and costs incurred by Contractor in connection with any dispute related to this contract, whether or not suit is filed. IN THE EVENT OF ANY LITIGATION ARISING HEREUNDER, THE CONTRACTOR AND SUBCONTRACTOR UNCONDITIONALLY AND ABSOLUTELY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY."

(Emphasis added; capitalization in original.)

The parties struck through the last sentence, and Ted Van Tassel, president of VTP, and Paul James, president of MHC, initialed the change in the margin adjacent to that sentence, signifying agreement to the change at the time the contract was executed. VTP does not dispute that the sentence waiving the right to a jury trial was struck from the contract.

MHC was not paid the final draw under its subcontract; it sued VTP to recover that amount. MHC filed a motion for a summary judgment based upon the contract. VTP then filed a motion to compel arbitration based upon the contract; it supported the motion with an affidavit by Van Tassel, detailing the substantial effect the transaction had on interstate commerce. MHC filed a response to the motion, including an affidavit from James. On August 31, 2001, the trial court entered an order compelling arbitration; it also found MHC's summary-judgment motion to be moot.

MHC originally appealed directly to this Court, but we transferred the case to the Court of Civil Appeals pursuant to § 12-2-7(6), Ala.Code 1975. The Court of Civil Appeals affirmed the circuit court's order granting VTP's motion to compel arbitration. Mountain Heating & Cooling, Inc. v. Van Tassel-Proctor, Inc., 867 So.2d 1104 (Ala.Civ.App.2002). MHC then petitioned this Court for certiorari review. We granted the petition to determine whether the contract evinces an intention by both parties to arbitrate their disputes.

II. Standard of Review

"[T]he standard of review of a trial court's ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review." Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999). "The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction [substantially] affecting interstate commerce." Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000). "`[A]fter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.'" Fleetwood Enters., Inc., 784 So.2d at 280 (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995)) (emphasis omitted).

III. Analysis

MHC argues that certain language included in the arbitration provision of its contract with VTP and language omitted from that contract show that it did not agree to arbitrate its claims against VTP. "This Court has clearly and consistently held that `"a party cannot be required to submit to arbitration any dispute he has not agreed to submit."'" Ex parte Stallings & Sons, Inc., 670 So.2d 861, 862 (Ala.1995) (quoting Old Republic Ins. Co. v. Lanier, 644 So.2d 1258, 1260 (Ala.1994), quoting in turn A.G. Edwards & Sons, Inc. v. Clark, 558 So.2d 358, 362 (Ala.1990)).

"`If there is doubt as to whether such an agreement [to arbitrate] exists, the matter, upon a proper and timely demand, should be submitted to a jury. Only when there is no genuine issue of fact concerning the formation of the agreement should the court decide as a matter of law that the parties did or did not enter into such an agreement.'"

Allstar Homes, Inc. v. Waters, 711 So.2d 924, 929 (Ala.1997) (overruled on other grounds by Ex parte Perry, 744 So.2d 859 (Ala.1999), quoting Shearson Lehman Bros. v. Crisp, 646 So.2d 613, 616 (Ala. 1994)); see, e.g., Ex parte Roberson, 749 So.2d at 445. "Whether a contract is ambiguous is a question of law for the trial court to determine." Underwood v. South Central Bell Tel. Co., 590 So.2d 170, 175 (Ala.1991).

"In interpreting a contract, the `"words of the agreement will be given their ordinary meaning."' Hibbett Sporting Goods, Inc. v. Biernbaum, 391 So.2d 1027, 1029 (Ala.1980) (quoting Flowers v. Flowers, 334 So.2d 856, 857 (Ala.1976)). An `instrument is unambiguous if only one reasonable meaning clearly emerges.' Vainrib v. Downey, 565 So.2d 647, 648 (Ala.Civ.App.1990); see also Flowers, 334 So.2d at 857. `If the terms within a contract are plain and unambiguous, the construction of the contract and its legal effect become questions of law for the court.... However, if the terms within the contract are ambiguous in any respect, the determination of the true meaning of the contract is a question of fact to be resolved by a jury.' McDonald v. U.S. Die Casting & Development Co., 585 So.2d 853, 855 (Ala. 1991) (citations omitted)."

Reeves Cedarhurst Dev. Corp. v. First Amfed Corp., 607 So.2d 184, 186-87 (Ala. 1992).

MHC argues that the contract as a whole, and the arbitration provision in particular, when examined closely, are ambiguous as to whether the parties agreed to arbitrate disputes. The most glaring instance of ambiguity in the arbitration provision is the statement that "the parties agree to settle the dispute by arbitration under the Construction Industry Mediation Rules of the American Arbitration Association." (Emphasis added.) The American Arbitration Association ("the AAA") has both "Construction Industry Arbitration Rules" and "Construction Industry Mediation Rules." Arbitration and mediation are separate and distinct methods of resolving disputes under the AAA rules.¹ Presiding Judge Yates, in her dissent to the Court of Civil Appeals' opinion, correctly notes that the Construction Industry Mediation Rules provide a form of nonbinding mediation in which the parties are not required to waive their rights to trial by jury. 867 So.2d at 1111.

VTP offers an explanation for the curious wording of the arbitration provision. According to VTP, the word "mediation" in the title "Construction Industry Mediation Rules" is a typographical error; it should have read "Construction Industry Arbitration Rules." The Court of Civil Appeals agreed that the use of the word "mediation" in the title is merely a typographical error. However, nothing in the record indicates that VTP offered this explanation to the trial court, nor is there any evidence in the record to support a finding that the use of the word "mediation" in the title is a typographical error. In Cooper v. Adams, 295 Ala. 58, 61, 322 So.2d 706, 708 (1975), this Court held that there must be support in the record for a claim before an appellate court can consider the claim. Thus, without support, we cannot consider the suggestion that the use of the word "mediation" in the title of the rules is a typographical error. VTP's suggestion that it is a typographical error highlights the ambiguity of the arbitration provision.

It is also curious that this sentence includes the statement that "the parties agree to settle the dispute by arbitration...." (Emphasis added.) MHC notes that typically a settlement occurs through mediation, whereas a decision is imposed as a result of arbitration. In the context of that statement, the word "settle" perhaps simply means "resolve," i.e., "the parties agree to [resolve] the dispute by arbitration," rather than a meaning encompassed within the legal definition of the word "settle." To resolve the dispute by arbitration makes sense, but to settle, in the legal sense, a dispute by arbitration is a contradiction of terms. Given the confusion already present in this passage, it would be unwise for this Court to venture a guess as to which meaning the parties intended. This wording again raises an ambiguity because the passage is susceptible to two...