Zions Management Services v. Record

This opinion is subject to revision before final
publication in the Pacific Reporter
2013 UT 36IN THE
SUPREME COURT OF THE STATE OF UTAH
ZIONS MANAGEMENT SERVICES,
Appellee,
v.
JEFFREY S. RECORD,
Appellant.
No. 20110860
Filed: June 25, 2013
Third District, Salt Lake City Dep’t
The Honorable Todd M. Shaughnessy
No. 110914393
Attorneys:
Michael Patrick O’Brien, Mark D. Tolman, Brock N. Worthen,
Salt Lake City, for appellee
Jaqualin Friend Peterson, Elizabeth M. Peck,
April L. Hollingsworth, Salt Lake City, for appellant
CHIEF JUSTICE DURRANT authored the opinion of the Court,
in which ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE DURHAM, JUSTICE PARRISH, and JUSTICE LEE joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
INTRODUCTION
¶1 Appellant Jeffrey S. Record seeks appellate review of the
district court’s order compelling him to arbitrate various claims
that arose out of his employment with Appellee Zions
Management Services Company (Zions). Mr. Record argues that
the district court erred in compelling arbitration because the plain
language of the arbitration clause in his employment contract
allows him to pursue administrative remedies prior to submitting
to arbitration. We agree. Accordingly, we vacate the district
court’s order compelling arbitration and remand for further
proceedings.
ZIONS MANAGEMENT v. RECORD
Opinion of the Court
BACKGROUND
¶2 Mr. Record began working for Zions in February 1996.
Throughout the course of his employment with Zions, and
specifically in June 2007, Mr. Record signed various documents
whereby he acknowledged receipt of the Zions Employee
Handbook, which stipulated that any disputes arising out of his
employment with Zions had to be resolved through mandatory,
binding arbitration (Arbitration Agreement). In relevant part, the
Arbitration Agreement stated:
Any legal controversy or claim arising out of your
employment with [Zions], which is not otherwise
governed by an arbitration provision, that cannot be
satisfactorily resolved through negotiation or
mediation, shall be resolved, upon election by you
or [Zions], by binding arbitration pursuant to this
arbitration provision and the code of procedures of
the American Arbitration Association (AAA). . . .
Under this binding arbitration policy, an employee
still has a right to file a claim with the EEOC, OSHA,
or any other appropriate federal or state regulatory
agency regarding a workplace issue. However,
where permitted by law, binding arbitration, rather
than the court system, is the process used for
pursuing relief beyond the agency.
The Arbitration Agreement further stipulated that “[b]ecause
employment with [Zions] involves interstate commerce, this
binding arbitration agreement is made pursuant to, and is
governed by, the Federal Arbitration Act.”
¶3 At some point during his employment, Mr. Record
became acquainted with Emilie Tanner, a co-worker at Zions.
According to Zions, Mr. Record and Ms. Tanner became
romantically involved, and Zions claims that it received a number
of complaints from other employees regarding the couple’s
behavior. Zions informed Mr. Record and Ms. Tanner of these
complaints and encouraged them to maintain a professional
demeanor while with each other at work. Unfortunately, neither
Mr. Record nor Ms. Tanner heeded this counsel, as Zions
terminated both of them on February 22, 2010, after another
employee reported seeing them together, partially undressed, in
the back of a dark, unused file room.
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¶4 After his termination, Mr. Record filed a “Charge of
Discrimination” with the Utah Anti-Discrimination and Labor
Division of the Utah Labor Commission (UALD), wherein he
alleged that Zions had discriminated against him on the basis of
his age, religion, gender, and association with a disabled
individual. Mr. Record also alleged that Zions had retaliated
against and harassed him in violation of federal and state law.
UALD issued its Determination and Order on March 29, 2011,
dismissing Mr. Record’s discrimination claims because the “facts
in the record, viewed in their entirety, indicate there is no
reasonable cause to believe that [Mr. Record] was subjected to the
discriminatory practices alleged.”
¶5 Pursuant to the “Appeal Rights of the Determination and
Order,” Mr. Record appealed UALD’s decision to the
Adjudication Division of the Utah Labor Commission (Labor
Commission) on April 28, 2011. Zions responded by attempting to
enforce the Arbitration Agreement in those proceedings by filing
a motion to compel arbitration. The administrative law judge,
however, determined that “[t]he Labor Commission lacks
jurisdiction to enforce an Arbitration agreement between an
employer and employee.” But the judge also stated that “[i]f the
respondent files a Court Order requiring the case to be arbitrated
the Commission would follow the Court Order.”
¶6 Accordingly, and pursuant to both the Utah and Federal
Arbitration Acts,1 on June 14, 2011, Zions filed a “Motion to
Compel Arbitration and Stay Judicial Proceedings” with the
district court. Specifically, Zions’ motion sought an order
compelling Mr. Record to arbitrate his discrimination claims and
an order staying the Labor Commission’s review of UALD’s
decision. The district court granted Zions’ motion and ordered
Mr. Record to submit to arbitration. The district court also ordered
the Labor Commission “to proceed no further in resolving
[Mr. Record’s] claims.”
¶7 Pursuant to the district court’s order, Zions attempted to
dismiss Mr. Record’s administrative proceeding by filing an
“Order of Dismissal” before the Labor Commission on August 22,
1 9 U.S.C. § 4 (permitting a party who seeks to enforce an
arbitration agreement to file a motion to compel arbitration with
any United States district court); UTAH CODE § 78B-11-106
(permitting a party who seeks to enforce an arbitration agreement
to file a motion to compel arbitration with any state district court).
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ZIONS MANAGEMENT v. RECORD
Opinion of the Court
2011. Despite its prior statement, however, the Labor Commission
denied Zions’ motion and instead insisted that “[t]he District
Court does not have jurisdiction to stay the Commission’s
proceedings for an employment discrimination claim” and
refused to stay the proceeding. In light of this order, Mr. Record
likewise refused to comply with the district court’s order and
instead pressed on with his appeal before the Labor Commission.
¶8 After failing to secure either Mr. Record’s or the Labor
Commission’s compliance with the district court’s order, Zions
returned to the district court and filed a “Motion for Contempt
Order” on September 12, 2011. In its motion, Zions requested that
the district court hold Mr. Record in contempt for his willful
violation of the district court’s order compelling arbitration. A few
days later, Mr. Record filed his Notice of Appeal from the district
court’s Order Compelling Arbitration.
¶9 Despite Mr. Record’s Notice of Appeal, the district court
granted Zions’ contempt motion on September 30, 2011. The
district court’s order recognized, however, that Mr. Record’s
“conduct in refusing to comply with the [district] court’s order is
based upon the [Labor Commission’s] Order and therefore may
be legally privileged.” Nevertheless, the district court ordered
Mr. Record to “take all steps reasonably necessary to stay . . . the
proceedings before the [Labor Commission].”
¶10 Then, on October 6, 2011, the Utah Labor Commissioner
modified the administrative law judge’s decision to deny Zions’
Order of Dismissal, holding that “until such time as the Order
[Compelling Arbitration] is withdrawn, overturned, or
superseded, the Labor Commission will comply with its terms.”
The Commissioner then stayed the proceedings related to
Mr. Record’s claims. Mr. Record amended his notice of appeal on
October 31, 2011, to include the district court’s contempt order
and now asks us to review both the Order Compelling Arbitration
and the Contempt Order. We have jurisdiction pursuant to section
78A-3-102(3)(j) of the Utah Code.
STANDARD OF REVIEW
¶11 “This court is the exclusive judge of its own jurisdiction.
The question of whether an order is final and appealable is a
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question of law.”2 This case also concerns the district court’s
interpretation of the parties’ contract, which is a question of law
that we review for correctness.3
ANALYSIS
¶12 Before we can consider the merits of the parties’
arguments, we must first resolve the procedural question of
whether we have jurisdiction to hear this appeal. Specifically, we
must address the question of whether the district court’s Order
Compelling Arbitration was a “final order” from which
Mr. Record could properly appeal.4 For the reasons stated below,
we conclude that the order was a final order and that we may
therefore address the parties’ arguments.
¶13 Mr. Record argues that the district court erred in
compelling arbitration because the plain language of the
Arbitration Agreement does not mandate arbitration until
Mr. Record seeks relief “beyond an agency.” We agree with
Mr. Record because the contractual language is unambiguous and
does not foreclose the possibility of an employee seeking
administrative review of an administrative decision prior to
submitting to arbitration.5
2 Powell v. Cannon, 2008 UT 19, ¶ 9, 179 P.3d 799 (footnote
omitted) (internal quotation marks omitted).
3 Miller v. USAA Cas. Ins. Co., 2002 UT 6, ¶ 19, 44 P.3d 663.
4 See UTAH R. APP. P. 3(a).
5 Mr. Record also argues that the district court erred when it
issued the Contempt Order because the order required him to
“take all steps reasonably necessary to stay the parties’ arbitration
proceeding pending further order of this court or the Appeals
Court.” According to Mr. Record, this requirement somehow
“impacts the ability of [various third parties] to move forward
with the arbitration of their disputes” and was thus erroneous.
Mr. Record did not raise this issue in the proceedings before the
district court, however, and hence may not raise it for the first
time on appeal unless he alleges plain error or exceptional
circumstances. State v. Moa, 2012 UT 28, ¶ 24, 282 P.3d 985. He has
alleged neither. Instead, he attempts to raise this issue as a
challenge to the district court’s subject matter jurisdiction,
presumably in an attempt to avoid problems with preservation.
But because this issue does not implicate the district court’s
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ZIONS MANAGEMENT v. RECORD
Opinion of the Court
I. UNDER UTAH LAW, THE DISTRICT COURT’S ORDER
WAS A “FINAL ORDER” BECAUSE IT ENDED THE
CONTROVERSY BETWEEN THE LITIGANTS
¶14 We first turn to the issue of whether the district court’s
Order Compelling Arbitration was an appealable “final order.”
Zions argues that the Arbitration Agreement is governed by the
FAA, which allows an immediate appeal only if the district court’s
order is “a final decision with respect to an arbitration that is
subject to [the FAA].”6 Relying on this language, Zions urges us to
immediately dismiss this appeal for lack of jurisdiction because
the district court’s order does not qualify as a “final decision.”
Specifically, Zions asserts that the order was not final because it
“stayed rather than dismissed the case,” and thus did not end the
controversy between the parties. Mr. Record, in contrast, argues
that the order was final and that therefore we may properly hear
this appeal.
¶15 We agree with Zions that the Arbitration Agreement is
subject to the FAA, which means that Mr. Record is entitled to
appeal only if the district court’s order was “final.” We disagree,
however, with Zions’ assertion that federal procedural law
governs our analysis of the order’s finality. Instead, we will
address the finality issue by referring to our own rules and
principles of law, under which we agree with Mr. Record; the
district court’s arbitration order constitutes a “final decision,” and
therefore we have jurisdiction to consider the merits of
Mr. Record’s appeal.
A. The Arbitration Agreement Clearly States that It Is Governed by
the FAA, But State Rather Than Federal Procedural Law Applies When
Determining What Constitutes a “Final Order”
¶16 Mr. Record admits that he signed several documents
acknowledging receipt of Zions’ “Employee Handbook,” and the
Arbitration Agreement contained within the Handbook expressly
states that it is governed by the FAA: “Because employment with
[Zions] involves interstate commerce, this binding arbitration
agreement is made pursuant to, and is governed by, the Federal
Arbitration Act.” (Emphasis added.) And under Section 16(a)(3) of
subject matter jurisdiction and because it was not preserved
below, we decline to address it.
6 9 U.S.C. § 16(a)(3).
6
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the FAA, appeals may only be taken from “a final decision with
respect to an arbitration that is subject to this title.”7 Thus, we
agree with Zions’ argument that Mr. Record’s appeal was proper
only if the district court’s order constitutes a “final order.”
¶17 We disagree, however, with Zions’ assertion that federal
rather than state law applies to the procedural question of
whether the order was “final.” The United States Supreme Court
has recognized the “general and unassailable proposition . . . that
[s]tates may establish the rules of procedure governing litigation
in their own courts.”8 But in the same opinion the Court cautioned
that “where state courts entertain a federally created cause of
action, the ‘federal right cannot be defeated by the forms of local
practice.’”9 In other words, if state procedure poses “an obstacle to
the accomplishment and execution of the full purposes and
objectives of Congress,” then federal procedural law would
preempt state law.10 Thus, the question for us becomes whether
the application of our own procedural rules would pose “an
obstacle to the accomplishment and execution of the full purposes
and objectives of Congress” when it enacted the FAA.
¶18 Fortunately, the Supreme Court has already provided us
with some guidance in this area. With respect to Congress’s
purpose in enacting the FAA, the Court has observed that the
FAA “was designed to overrule the judiciary’s longstanding
refusal to enforce agreements to arbitrate”11 and to “ensure the
enforceability, according to their terms, of private agreements to
arbitrate.”12 And with respect to the application of state
procedure, the Court has stated that the “FAA contains no express
pre-emptive provision, [and] does [not] reflect a congressional
intent to occupy the entire field of arbitration.”13 Furthermore,
“[t]here is no federal policy favoring arbitration under a certain set
7 Id.
8 Felder v. Casey, 487 U.S. 131, 138 (1988).
9 Id. (quoting Brown v. Western Ry. of Ala., 338 U.S. 294, 296
(1949)).
10 Id. (internal quotation marks omitted).
11 Volt Info. Scis., Inc. v. Bd. of Trs. of the Leland Stanford Junior
Univ., 489 U.S. 468, 474 (1989) (internal quotation marks omitted).
12 Id. at 476.
13 Id. at 477.
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ZIONS MANAGEMENT v. RECORD
Opinion of the Court
of procedural rules.”14 Accordingly, most state courts that have
considered this question have determined that there is no reason
why federal procedural law should preempt state law in litigation
governed by the FAA.15
¶19 We agree with this reasoning. Whether an order is “final”
for the purposes of appeal is a purely procedural question, and
given that (a) Congress has not expressly preempted the
application of local procedural rules in the FAA and (b) the
application of local procedural rules will not frustrate the
purposes of the FAA, we conclude that even in litigation
governed by the FAA, state procedural rules and applicable
principles of law will apply. Accordingly, we address the issue of
the finality of the district court’s order under Utah law.
B. Under Utah Law, the District Court’s Order Constitutes a “Final
Order” Because No Claims Were Left Pending Before the District Court
¶20 Zions’ principal argument against the finality of the
district court’s order is that the order included a stay of
Mr. Record’s administrative appeal that was pending before the
Labor Commission, rather than a dismissal. Had the district court
14 Id. at 476 (emphasis added).
15 See, e.g., S. Cal. Edison Co. v. Peabody W. Coal Co., 977 P.2d
769, 773 (Ariz. 1999) (en banc) (“The FAA does not . . . require
submission to federal procedural law.”); Am. Gen. Fin. Servs. v.
Jape, 732 S.E.2d 746, 748–50 (Ga. 2012) (same); Collins v. Prudential
Ins. Co. of Am., 752 So. 2d 825, 828–29 (La. 2000) (same); Wells v.
Chevy Chase Bank, F.S.B., 768 A.2d 620, 627–29 (Md. 2001) (citing
cases and stating that most state courts addressing this question
have determined that their state procedural rules govern unless
those rules undermine the purposes of the FAA); St. Fleur v. WPI
Cable Sys./Mutron, 879 N.E.2d 27, 32–33 (Mass. 2008) (deciding that
the FAA does not preempt state procedural rules); Kremer v. Rural
Cmty. Ins. Co., 788 N.W.2d 538, 546–47 (Neb. 2010) (same);
Superpumper, Inc. v. Nerland Oil, Inc., 582 N.W.2d 647, 651 (N.D.
1998) (same); Moscatiello v. Hilliard, 939 A.2d 325, 329 (Pa. 2007)
(“The FAA does not preempt the procedural rules governing
arbitration in state courts, as that is beyond its reach.”); Toler’s
Cove Homeowners Ass’n, Inc. v. Trident Constr. Co., 586 S.E.2d 581,
584 (S.C. 2003) (same); In re Palacios, 221 S.W.3d 564, 565 (Tex.
2006) (per curiam) (same).
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dismissed the discrimination claims that were pending on appeal
before the Labor Commission and then ordered arbitration, Zions
argues, the order would have been “final” and this appeal would
be proper. Zions also contends that the order lacked finality
because the district court retains jurisdiction to confirm, vacate,
modify, or correct the arbitration award once arbitration is
completed. We are not persuaded by either of these arguments
because (1) the district court did not have the authority to issue
the stay of the administrative proceedings, which means that the
order compelling arbitration completely resolved the controversy
between the parties, making it a “final” order from which
Mr. Record could appeal; and (2) the availability of post-
arbitration remedies before the district court does not affect the
finality of an order compelling arbitration.
1. Because the District Court’s Order Staying the Administrative
Proceedings Was Void, There Was Nothing Left Pending
Before the District Court, and Therefore Its Order Compelling
Arbitration Was Final
¶21 In its argument against the finality of the district court’s
order, Zions relies primarily upon our decision in Powell v.
Cannon.16 In that case, the plaintiff parents sued a delivery doctor,
a women’s center, and a hospital for negligence.17 The defendants
moved to stay litigation and compel arbitration pursuant to the
arbitration agreement that the plaintiffs had signed during their
first visit with the delivery doctor.18 The district court determined
that the arbitration agreement was valid, not unconscionable, and
that the plaintiffs could sign on behalf of the unborn child.19
Accordingly, it granted the motion to stay litigation and
compelled the plaintiffs to arbitrate their claims.20
¶22 The plaintiffs appealed.21 On appeal, the defendants
argued that we lacked jurisdiction because the order staying
litigation and compelling arbitration did not constitute a “final
16 2008 UT 19, 179 P.3d 799.
17 Id. ¶ 2.
18 Id. ¶ 3.
19 Id. ¶ 6.
20 Id.
21 Id. ¶ 7.
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ZIONS MANAGEMENT v. RECORD
Opinion of the Court
order.”22 We agreed, reasoning that “[a] district court’s order is a
final judgment only if it ends the controversy between the parties
by finally disposing of the litigation on the merits as to all claims
and all parties.”23 In other words, “[i]f any issue remains pending,
the final judgment rule is not satisfied.”24 We then concluded that
because the district court’s order stayed litigation of the
underlying negligence claims pending completion of the
arbitration, the order was not final: “Until the district court enters
judgment on the arbitration award, the Powells’ underlying
claims for medical malpractice remain viable and cognizable. . . .
Therefore, we hold that an order staying litigation and compelling
arbitration is not a final order from which an appeal may be
taken.”25
¶23 Zions argues that Powell is directly applicable here
because the district court’s order included both a stay and an
order compelling arbitration. This argument presupposes,
however, that the district court’s order staying the administrative
proceedings in the case before us was valid. But this
presupposition is true only if the district court had subject matter
jurisdiction over the proceedings below.26
¶24 As a general rule, Utah courts have “subject matter
jurisdiction over a legal claim unless adjudicative authority for that
claim is specifically delegated to an administrative agency.”27 This case
concerns a discrimination claim over which the Labor
Commission possesses exclusive jurisdiction: “The procedures
contained in this section are the exclusive remedy under state law
for employment discrimination based upon: (a) race; (b) color;
(c) sex; (d) retaliation; (e) pregnancy, childbirth, or pregnancy-
22 Id.
23 Id. ¶ 15.
24 Id. (emphasis added).
25 Id. ¶¶ 18, 20.
26 J.M.W., III v. T.I.Z. (In re Adoption of Baby E.Z.), 2011 UT 38,
¶ 37, 266 P.3d 702, (stating that “[a] decision rendered by a court
without subject matter jurisdiction is legally void at its
inception”), cert. denied, 132 S. Ct. 1743 (2012).
27 Mack v. Utah State Dep’t of Commerce, 2009 UT 47, ¶ 33, 221
P.3d 194 (emphasis added).
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related conditions; (f) age; (g) religion; (h) national origin; or
(i) disability.”28 Therefore, because the Utah Code grants
“exclusive” jurisdiction over discrimination claims to the Labor
Commission,29 a district court’s role in the adjudication of such
claims is governed by the Utah Administrative Procedures Act
(UAPA),30 which authorizes judicial review of agency action only
after the parties have exhausted administrative remedies.31 In
interpreting this provision of UAPA, we have explicitly stated
that state courts lack “subject matter jurisdiction to hear the case”
if the litigant fails to exhaust all the administrative remedies
available to him,32 which is precisely what happened in this case.
¶25 Mr. Record initiated administrative proceedings when he
filed a claim with UALD alleging discrimination. Accordingly,
under UAPA the district court has no jurisdiction over those
proceedings until Mr. Record has exhausted his administrative
remedies, at which point Mr. Record can seek judicial review of
the agency’s decision.33 Thus, when it was presented with the
district court’s order that purported to stay Mr. Record’s
administrative appeal, the Labor Commission correctly reasoned
that “[t]he District Court does not have jurisdiction to stay the
Commission’s proceedings for an employment discrimination
claim.” This is correct because the district court’s jurisdiction over
those proceedings arises only after all administrative remedies
have been exhausted. But because Mr. Record was just beginning
to avail himself of those remedies at the time the district court
attempted to issue the stay, the district court acted without
jurisdiction, rendering its order void.
28 UTAH CODE § 34A-5-107(15) (emphasis added).
29 See id. §§ 34A-5-104(1), 107(1).
30See id. § 63G-4-102(1) (stating that UAPA applies to “every
agency of the state” and “judicial review” of agency action).
31 Id. § 63G-4-401(2).
32 Frito-Lay v. Utah Labor Comm’n, 2009 UT 71, ¶ 30, 222 P.3d 55(“The exhaustion of administrative remedies requirement
mandates that the litigant follow all of the outlined administrative
review procedures prior to a state court having subject matter
jurisdiction to hear the case.”).
33 See UTAH CODE § 63G-4-401 to -405.
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Opinion of the Court
¶26 Accordingly, for the purposes of determining whether we
have jurisdiction over this appeal, we will ignore the district
court’s attempt to stay the administrative proceedings. Once the
stay is removed from the district court’s order, the only issue
before the district court was whether the Arbitration Agreement
should be enforced. And once the district court issued its Order
Compelling Arbitration, there was nothing left for the district
court to do. Thus, under the reasoning of Powell, the district
court’s order was a “final decision” because it effectively ended
the controversy between the parties and left no claims pending
before the district court. We therefore have jurisdiction to hear
this appeal.
2. The Availability of Post-Arbitration Remedies Before the
District Court Does Not Affect the Finality of an Order
Compelling Arbitration
¶27 Zions also argues that the district court’s order was not
final because “the district court . . . retains jurisdiction, under both
the FAA and [Utah Arbitration Act], to enter post-arbitration
judgment and to otherwise confirm, vacate, modify or correct the
arbitration award.” We disagree.
¶28 Although we stated in Powell that “the [district] court
may modify or correct an arbitration award before entering a
judgment on it,”34 the fact remains that in Powell the district court
had stayed litigation on the underlying claims for negligence and
medical malpractice. Thus, while arbitration was proceeding,
those claims remained live before the district court, and thus the
district court did, in fact, “retain jurisdiction” over those claims,
which is why we determined that the district court’s order
compelling arbitration and staying litigation was not final.
¶29 But here there were no live claims that remained before
the district court after it issued its order. As demonstrated above,
the district court’s attempt to stay the administrative proceedings
was void for lack of jurisdiction, and even though the district
court may, pursuant to either the FAA or the Utah Arbitration
Act, “confirm, vacate, or modify” an arbitration award, this fact
does not affect the finality of an order compelling arbitration
where no claims remain before the district court after it issues the
34 2008 UT 19, ¶ 18.
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order.35 Therefore, we conclude that the district court’s order was
final and that we have jurisdiction to hear the merits of this
appeal.
II. THE DISTRICT COURT ERRED IN ITS INTERPRETATION
OF THE PARTIES’ ARBITRATION AGREEMENT, WHICH
UNAMBIGUOUSLY ALLOWS FOR ADMINISTRATIVE
APPEALS
¶30 Mr. Record argues that the district court also erred when
it determined that he was required to submit his discrimination
claims to arbitration pursuant to the Arbitration Agreement. He
points to the language of the Arbitration Agreement, which states
that “binding arbitration, rather than the court system, is the
process used for pursuing relief beyond the agency.” (Emphasis
added.) He then argues that this language is unambiguous, and
that by pursuing an appeal within the Labor Commission, he has
not sought relief “beyond the agency” and hence is not required
to arbitrate. Zions, on the other hand, argues that this language is
subject to multiple interpretations and urges us, pursuant to both
state and federal policies favoring arbitration, to affirm the district
court’s order. Because this language is unambiguous, we agree
with Mr. Record.
¶31 The Supreme Court has held that under the FAA
“[a]rbitration is strictly a matter of consent, and thus is a way to
resolve those disputes—but only those disputes—that the parties
have agreed to submit to arbitration.”36 In other words,
35 We note that the United States Supreme Court has reached
the same decision. In Green Tree Financial Corp.-Alabama v.
Randolph, the Court reasoned that because the district court had
dismissed the underlying claims with prejudice, the district court
had “nothing more . . . to do but execute the judgment.” 531 U.S.
79, 86 (2000). The Court then concluded: “where, as here, the
District Court has ordered the parties to proceed to arbitration,
and dismissed all the claims before it, that decision is ‘final’
within the meaning of § 16(a)(3), and therefore appealable.” Id. at
89. In reaching this conclusion, the Court also noted that the fact
that the FAA allows the parties to “bring a separate proceeding in
a district court to enter judgment on an arbitration award once it
is made (or to vacate or modify it) . . . does not vitiate the finality of
the District Court’s [decision].” Id. at 86 (emphasis added).
36Granite Rock Co. v. Int’l Bhd. of Teamsters, 130 S. Ct. 2847, 2857
(2010) (citations and internal quotation marks omitted).
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Opinion of the Court
“arbitration is a matter of contract,”37 the interpretation of which
is “ordinarily a question of state law, which this Court does not sit
to review.”38 Nevertheless, the Court has cautioned that when
“applying general state-law principles of contract interpretation to
the interpretation of an arbitration agreement within the scope of
the [FAA], due regard must be given to the federal policy favoring
arbitration, and ambiguities as to the scope of the arbitration
clause itself [must be] resolved in favor of arbitration.”39
¶32 It is well established in Utah that “[i]f the language
within the four corners of the contract is unambiguous, the
parties’ intentions are determined from the plain meaning of the
contractual language.”40 Zions has failed to show, however, that
the language in the Arbitration Agreement is ambiguous. Instead,
Zions focuses almost exclusively on the parties’ intentions in
entering the Arbitration Agreement, arguing that failure to
enforce it would cause “substantial delay, expense, duplication of
effort, and risk of inconsistent results” as well as “unnecessary
procedural difficulties.” While this may be true, we “will not
rewrite an unambiguous contract,”41 nor will we “allow the
parties to change or rewrite their original agreement.”42
¶33 Zions admits that the Arbitration Agreement expressly
allows for an employee to initiate administrative proceedings by
“filing a claim” before a state or federal agency. Zions also
acknowledges, of course, that the Arbitration Agreement contains
the language “where permitted by law, binding arbitration, rather
than the court system, is the process used for pursuing relief
beyond the agency.” (Emphasis added.) Because Zions has not
37 AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643,
648 (1986) (internal quotation marks omitted).
38 Volt Info. Scis., Inc. v. Bd. of Trs. of the Leland Stanford Junior
Univ., 489 U.S. 468, 474 (1989).
39 Id. at 475–76 (citation omitted).
40 Cent. Fla. Invs., Inc. v. Parkwest Assocs., 2002 UT 3, ¶ 12, 40
P.3d 599.
41 Provo City Corp. v. Nielson Scott Co., 603 P.2d 803, 806 (Utah
1979).
42Ivory Homes, Ltd. v. Utah State Tax Comm’n, 2011 UT 54, ¶ 12,
266 P.3d 751.
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shown how this language is ambiguous, whatever the parties’
intentions were prior to entering into this Arbitration Agreement
is irrelevant because “the parties’ intentions are determined from
the plain meaning of the contractual language.”43
¶34 Here, the language clearly states that arbitration is
required only if Mr. Record attempts to obtain relief from sources
“beyond the agency.” But Mr. Record has not yet done so. He
filed a discrimination claim with the Labor Commission, and then
attempted to appeal UALD’s decision on that claim to the Labor
Commission. Neither action constitutes an attempt to seek relief
“beyond the agency,” and therefore the district court erred when
it issued its order compelling arbitration because, under the plain
language of the Arbitration Agreement, Mr. Record is not
required to arbitrate his discrimination claims until he seeks relief
“beyond the agency.”
¶35 Zions attempts to avoid this result by arguing that Preston
v. Ferrer44 requires the parties to submit to arbitration once the
agency “shifts from its role as investigator to impartial arbiter.”
Zions has misapplied this case, however, since the language of the
arbitration agreement at issue in Preston, unlike the agreement
here, did not expressly allow for administrative remedies. Instead,
the agreement in Preston simply stated that “any dispute . . .
relating to the terms of [the contract] or the breach, validity, or
legality thereof” should be arbitrated “in accordance with the
rules [of the American Arbitration Association].”45 There was no
language about administrative remedies, nor any language that
conditioned arbitration on the petitioner’s decision to seek “relief
beyond the agency.” Therefore, the reasoning in Preston is
inapplicable.
¶36 At oral argument, Zions also attempted to rely on both
state and federal policies that urge us to resolve “ambiguities as to
the scope of the arbitration clause itself . . . in favor of
43 Cent. Fla. Invs., Inc., 2002 UT 3, ¶ 12.
44 552 U.S. 346 (2008).
45Id. at 350 (alterations in original) (internal quotation marks
omitted).
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ZIONS MANAGEMENT v. RECORD
Opinion of the Court
arbitration.”46 As noted above, however, Zions failed to
demonstrate how the language at issue here was ambiguous.
Furthermore, we wish to reaffirm the position we took in Bybee v.
Abdulla, wherein we stated that “[w]hile there is a presumption in
favor of arbitration, that presumption applies only when
arbitration is a bargained-for remedy of the parties as evidenced
by direct and specific evidence of a contract to arbitrate.”47 We further
note that state and federal policies favoring arbitration cannot be
used to defeat the plain language of the parties’ contract, nor can
they be used to create ambiguities where there are none. Because
the language of this contract is unambiguous, we reverse the
district court’s decision to compel arbitration and remand this
case to the district court for further proceedings consistent with
this opinion.
CONCLUSION
¶37 Under the parties’ Arbitration Agreement, Mr. Record
was not required to submit his discrimination claims to arbitration
until he sought relief based on those claims “beyond the agency.”
Because he has not yet pursued relief beyond the Labor
Commission, the district court erred when it issued its order
compelling arbitration. We therefore vacate that order and
remand this case to the district court for further proceedings
consistent with this opinion.
46Volt, 489 U.S. at 476; see also Bybee v. Abdulla, 2008 UT 35, ¶
27, 189 P.3d 40 (stating that we have “no quarrel” with the
presumption that ambiguities be resolved in favor of arbitration).
472008 UT 35, ¶ 27 (emphasis added) (internal quotation
marks omitted).
16