City of Ankeny v. Armstrong Co., Inc.

• Decision Date: 26 June 1984
• Docket Number: No. 83-777,83-777
• Parties: CITY OF ANKENY, Iowa, Plaintiff-Appellee, v. ARMSTRONG CO., INC., Defendant-Appellant.
• Court: Iowa Court of Appeals

Page 864

353 N.W.2d 864

CITY OF ANKENY, Iowa, Plaintiff-Appellee, v. ARMSTRONG CO., INC., Defendant-Appellant.

No. 83-777.

Court of Appeals of Iowa.

June 26, 1984.

Thomas C. Farr of Peddicord & Sutphin, Des Moines, for defendant-appellant.

Ann Marie Brick and Patrick W. Brick of Brick, Seckington, Bowers, Schwartz & Gentry, Des Moines, for plaintiff-appellee.

Heard by SNELL, P.J., and SCHLEGEL and SACKETT, JJ.

SCHLEGEL, Judge.

Defendant, Armstrong Company, Inc., appeals from a summary judgment for plaintiff on its counterclaim in this declaratory judgment action brought to determine whether an arbitration award for defendant was proper. Defendant asserts on appeal that it was improper to sustain the plaintiff's motion for summary judgment on the basis of an earlier ruling by the court because the earlier decision constituted only a ruling on the defendant's motion to dismiss, not a determination on the merits that the arbitration award was improper. We reverse and remand.

The plaintiff city engaged Armstrong to build a golf course. The contract for the golf course provided for arbitration of disputes and set out a procedure for such arbitration. The contract also provided for a set procedure whereby the defendant could be paid for changes in the construction of the golf course that were ordered by the city.

After the work was completed, a dispute arose as to whether Armstrong was entitled to an additional $80,000 compensation it requested for extra work performed during the course of construction. Armstrong requested arbitration and both parties proceeded with the arbitration process. The city objected to the arbitration board's power to decide the issue at the meeting of the board, but continued to participate in the arbitration proceeding after its objection was rejected. The objection concerned Armstrong's alleged failure to make timely requests for compensation and for arbitration under the procedures agreed to by the parties in the construction contract. The arbitration board entered an award for defendant of $46,839.88.

The city then brought this declaratory judgment action in the district court asserting that arbitration was improper and the award not enforceable because Armstrong did not make its claim for additional compensation for the changes ordered by the city within the time provided for by the contract, and because Armstrong did not demand arbitration of the dispute within the time provided in the contract. The defendant, prior to making its responsive pleading, moved to dismiss the petition on the grounds that the arbitration award was binding and not reviewable, and on the grounds that the city was estopped from challenging the arbitrability of the dispute by its participation in the arbitration procedure.

We set out in detail the relevant portions of the district court's order, per Judge This matter came on for hearing before this Court on the 31st day of August, 1982, upon the Defendant's Motion to Dismiss the Petition for Declaratory Judgment (emphasis added) heretofore filed by Plaintiff. The Plaintiff was represented by its attorney ... and the Defendant was represented by its attorney, ....

Bergeson, denying Armstrong's motion to dismiss because it is the basis for the district court's subsequent order, per Judge Strickler, granting the city's motion for summary judgment. The hearing on Armstrong's motion to dismiss was held in the judge's chambers with only the parties' attorneys present. The order denying Armstrong's motion to dismiss provided as follows:

At said hearing, each of the parties agreed to the following statements of fact:

1. That in June of 1979, the Plaintiff and Defendant entered into a written agreement for the construction ....

* * *

* * *

Assuming the above facts to be true, the Court has been requested by the parties (emphasis added) to make a determination of the following issues:

A. Did the Board of Arbitration exceed its contractual authority by making an award in favor of the Defendants in view of the fact that the Defendant failed to make a claim within twenty (20) days from the occurrence of the event, or to request arbitration within thirty (30) days from the architect's denial of such claim; and

B. Did the Plaintiff waive its right to judicial review of the preceding issue by appearing before the Board of Arbitration on the 19th day of April, 1982.

CONCLUSIONS OF LAW

This Court concludes that the Plaintiff made a timely objection to arbitrability before the Board on April 19, 1982. This fact is not disputed....

... the Court is compelled to conclude that under the clear terms and provisions of the contract between the parties, the claim, as filed by the Defendant, was not subject to arbitration, and that, therefore, the Board lacked arbitral jurisdiction.

* * *

* * *

Therefore, for the above and foregoing reasons, the Court enters the following Order:

IT IS ORDERED, ADJUDGED AND DECREED that the Motion to Dismiss heretofore filed by the Defendant is hereby overruled.

IT IS FURTHER ORDERED that, assuming the above statement of fact to be true, the arbitration award entered by the Arbitrators on May 26, 1982, is neither binding nor enforceable against Plaintiff.

IT IS FURTHER ORDERED that costs of this action are assessed against Plaintiff.

After the motion to dismiss was overruled, Armstrong answered the city's petition for declaratory relief and counterclaimed for the amount of the arbitration award. Judge Bergeson, in response to an unresisted motion, transferred the matter from the equity docket to the law docket. The city then filed its reply to Armstrong's counterclaim asserting, inter alia, that the doctrine of res judicata precluded the counterclaim because Judge Bergeson's order was a final judgment on the merits.

The plaintiff city also filed a motion for summary judgment alleging that it was entitled to judgment as a matter of law because the defendant's counterclaim was barred by the doctrine of res judicata. The city submitted a "statement of facts and brief" in support of its motion for summary judgment in which it asserted that the above described ruling was a final judgment barring Armstrong's counterclaim. Armstrong filed a brief in resistance to the city's motion for summary judgment asserting that the order overruling its motion to dismiss was not res judicata as to the merits of the declaratory judgment action and that there was a genuine issue of material fact as to whether the city had waived the issue of arbitrability at the arbitration proceeding.

The court (per Judge Strickler), in ruling upon the city's motion for summary judgment, stated that the issue was whether or not the defendant's counterclaim had been adjudicated. The court found that, in view of the language used in the ruling on the motion to dismiss, the issue of arbitrability had been decided adversely to Armstrong and, accordingly, sustained the city's motion for summary judgment.

I. We must determine whether the pleadings, motions, affidavits, and testimony, i.e., the entire record, discloses a genuine issue as to any material fact. Schulte v. Mauer, 219 N.W.2d 496, 499 (Iowa 1974); Iowa R.Civ.P. 237(c).

The burden of showing absence of any genuine issue of material fact is upon the summary judgment movant, id. at 500, in this case the plaintiff city. "The trial court (and this court on review) must look at the whole record in the light most favorable to the one against whom the motion is made." Tasco, Inc. v. Winkel, 281 N.W.2d 280, 282 (Iowa 1979). However, where the only conflict concerns legal consequences of undisputed, underlying facts, entry of summary judgment is proper. Goodwin v. City of Bloomfield, 203 N.W.2d 582, 588 (Iowa 1973).

The trial court granted the city's motion for summary judgment based upon its determination that as a matter of law Armstrong's counterclaim was barred by the court's earlier ruling on the motion to dismiss. We review that determination.

II. The trial court's ruling on summary judgment does not set out the legal grounds for its decision. However, both parties argued in their briefs at trial, in support of and in resistance to the motion, the doctrine of res judicata. They continue to do so on appeal.

There was no "prior action" in this case as is normally found in cases asserting res judicata. See Israel v. Farmers...