Brush Arbor Home Construction v. Alexander

PRESENT: All the Justices
BRUSH ARBOR HOME CONSTRUCTION, LLC
OPINION BY
v. Record No. 180454 JUSTICE STEPHEN R. McCULLOUGH
February 21, 2019
ANDREA ALEXANDER, ET AL.
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Stephen E. Sincavage, Judge
Brush Arbor Home Construction, LLC, appeals from a decision denying its motion to
compel arbitration. We conclude that the circuit court erred in denying the motion for arbitration
and, accordingly, we will reverse the decision below.
BACKGROUND
Andrea and Mark Alexander sued Brush Arbor under a number of theories, alleging that
the home Brush Arbor constructed for the Alexanders suffered from a variety of defects which
caused the home to sustain water damage. Brush Arbor responded by filing a motion to compel
arbitration. Article 12 of the parties’ contract contained the following arbitration clause:
Any controversy or claim arising out of or relating to this contract, or the breach
thereof, shall be settled by arbitration administered by the Better Business Bureau
under its Construction Industry Arbitration Rules, and judgment on the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof.
The circuit court denied the motion, finding that, as the parties conceded, “the Better
Business Bureau does not have any construction industry arbitration rules.” In the absence of
such rules, the Court concluded that it is “impossible to execute that term of the agreement.”
The court reasoned that “[t]o order arbitration under the terms of this agreement would be an
order to conduct an impossibility. To order arbitration under the procedures that the defendant
suggests would be for the [c]ourt to order the plaintiff to abide by an arbitration clause it never
agreed to.”
Brush Arbor filed a motion to reconsider, arguing, among other things, that the arbitrator
rather than the court was the proper decision maker with respect to the validity of the arbitration
clause. The circuit court denied the motion to reconsider. We awarded Brush Arbor this appeal
pursuant to Code § 8.01-581.016(1), which allows an appeal from an order denying a motion to
compel arbitration. 1
ANALYSIS
We review a circuit court’s interpretation of contractual language, including language
governing arbitration, de novo. Schuiling v. Harris, 286 Va. 187, 192 (2013).
We note at the outset that the Alexanders have never challenged the existence of a
voluntary contract containing an arbitration clause. Instead, they dispute the clause’s
interpretation and enforceability.
“[T]he extent of the duty to arbitrate, just as the initial duty to arbitrate at all, arises from
contractual undertakings.” Doyle & Russell, Inc. v. Roanoke Hosp. Ass’n, 213 Va. 489, 494
(1973). It is a court’s duty in the first instance to construe the contract to determine what
1
We previously denied the Alexanders’ motion to dismiss the case for lack of a
transcript. The Alexanders again claim that the absence of a transcript is fatal to Brush Arbor’s
appeal. We conclude that a transcript is not “necessary to permit resolution of appellate issues”
before us. Rule 5:11(a)(1). The record contains the parties’ motions and responses to those
motions. It also contains the portion of the transcript containing the court’s ruling. Finally,
contrary to the assertion made by the Alexanders on appeal, the contract, which the Alexanders
attached to their complaint and which the parties and the circuit court discussed and relied on
without objection, is properly part of the record on appeal. This record is sufficient to enable us
to reach the issues raised on appeal. We also conclude that Brush Arbor did not waive its right to
seek arbitration. The Alexanders contend that Brush Arbor waited too long to seek arbitration.
The record refutes this claim.
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questions the parties agreed to submit to arbitration. Waterfront Marine Constr., Inc. v. North
End 49ers Sandbridge Bulkhead Grps. A, B & C, 251 Va. 417, 425-26 (1996). 2 Brush Arbor’s
second assignment of error is that the circuit court erred in “refusing to compel arbitration
because, under the broad scope of the arbitration clause at issue, the question of which rules were
required by the arbitration clause was an issue for the arbitrator chosen by the parties, not the
court, to decide.” We agree.
The language of the contract determines whether a particular dispute is arbitrable. For
example, in Weitz v. Hudson, 262 Va. 224, 226 (2001), we considered a clause that provided
arbitration of “[a]ny dispute or controversy” that arises “under, out of, in connection with, or in
relation to” a partnership agreement. We concluded that this clause encompassed a claim that
one of the partners illegally converted partnership funds. Id. at 226-27, 229. Consequently, we
held that the circuit court erred in finding that the dispute was not subject to arbitration. Id. at
229.
In Waterfront Marine, by contrast, we found that the dispute was not arbitrable. 251 Va.
at 430. In that case, a construction company and an unincorporated association of landowners
contested whether certain bulkheads were defective in their design and construction. Id. at
421-22. A first arbitration award required the construction company to perform certain repairs.
Id. at 422. The landowners filed a second demand for arbitration, essentially seeking to force
compliance with the arbitration award and further seeking damages. Id. We held that the
landowners’ second arbitration demand “relate[d] solely to the terms of the first arbitration
2
This contract does not contain a “delegation clause” which expressly gives the arbitrator
the exclusive right to decide whether arbitration should proceed. See Rent-A-Center, W., Inc. v.
Jackson, 561 U.S. 63 (2010) (adopting the parties’ use of the term “delegation clause” or
“delegation provision”).
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award; no provision of the construction contract need[ed] [to] be construed or applied to resolve
the controversy over noncompliance.” Id. at 430. Therefore, the second arbitration demand
“was not contemplated as an arbitrable controversy in the agreement between the parties.” Id.
In the case at bar, the parties disagree over the proper interpretation of the arbitration
clause of the contract. The arbitration clause here states that “[a]ny controversy or claim arising
out of or relating to this contract, or the breach thereof, shall be settled by arbitration . . . .” We
have described such language as “very broad in its coverage.” Id. at 426. “Broad language of
this nature covers contract-generated or contract-related disputes between the parties however
labeled.” McMullin v. Union Land & Mgmt. Co., 242 Va. 337, 341 (1991). The Alexanders
essentially argue that the contractual language requiring arbitration using the Better Business
Bureau’s rules means rules promulgated by the Better Business Bureau. Because the Better
Business Bureau has not promulgated its own rules, they reason, it is impossible to enforce this
clause. Brush Arbor responds that the agreement did not require the Better Business Bureau to
promulgate any such rules. Instead, it argues, it would have been perfectly proper under the
contract for the Better Business Bureau’s arbitrator to use construction industry arbitration rules
or any other rules that the Better Business Bureau might choose to employ. Id. Brush Arbor
further contends that the doctrine of impossibility does not apply even if the agreement
contemplated that the Better Business Bureau would devise its own rules of arbitration.
The straightforward question we must resolve is whether the parties’ disagreement over
the interpretation of Article 12, as well as the application of the doctrine of impossibility to this
article of the contract, are “controvers[ies] or claim[s] arising out of or relating to this contract,
or the breach thereof.” The answer is plainly yes. These are “controvers[ies] arising out of or
relating to” this contract, and, therefore, an arbitrator must resolve them. We hold that the circuit
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court erred in concluding otherwise. The fact that the controversy or claim deals with the
interpretation of the arbitration clause of the contract does not change the outcome. The
arbitrator will need to (1) interpret the arbitration clause, (2) depending on how the arbitrator
interprets the arbitration clause, determine whether the impossibility defense applies, and (3)
finally, depending on the arbitrator’s answer to that question, resolve the Alexanders’ underlying
claims.
CONCLUSION
We will reverse the judgment of the circuit court and remand for entry of an order
directing the parties to proceed to arbitration. 3
Reversed and remanded.
3
In light of our resolution of the second assignment of error, we need not address the
remaining assignments of error.
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