City of Hot Springs v. Gunderson's, Inc.

• Decision Date: 14 July 1982
• Docket Number: No. 13481,13481
• Citation: City of Hot Springs v. Gunderson's, Inc., 322 N.W.2d 8 (S.D. 1982)
• Parties: CITY OF HOT SPRINGS, Plaintiff and Appellee, v. GUNDERSON'S INC., a South Dakota Corporation, Defendant and Appellant, and Phelps-Benz and Associates, Inc., a Colorado Corporation, Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 8

322 N.W.2d 8

CITY OF HOT SPRINGS, Plaintiff and Appellee, v. GUNDERSON'S INC., a South Dakota Corporation, Defendant and Appellant and Phelps-Benz and Associates, Inc., a Colorado Corporation Defendant and Appellee.

No. 13481.

Supreme Court of South Dakota.

Submitted on Briefs Nov. 20, 1981.

Decided July 14, 1982.

Marvin D. Truhe of Lynn, Jackson, Schultz & Lebrun, Rapid City, for appellee City of Hot Springs.

Edward C. Carpenter of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, for appellee Phelps-Benz and Associates, Inc.

Joseph M. Butler of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for appellant.

MORGAN, Justice.

This appeal arises from defendant, Gunderson's Inc. (Gunderson's), motion to compel arbitration in a suit brought by the City of Hot Springs (City) against Gunderson's and Phelps-Benz & Associates (Phelps-Benz) for negligence and breach of contract in the construction and design of a city golf course. Only Gunderson's contract with City contained an arbitration clause. The trial court denied Gunderson's motion because Phelps-Benz could not be compelled to arbitrate, thus, a great likelihood of multiple suits existed if Gunderson's prevailed on its motion. We reverse and remand.

Phelps-Benz is an architectural firm which agreed with the City to provide planning and design services for the Southern Hills Golf Course. The contract also included supervision and inspection of the construction of the course. Approximately nine months later, the City entered an agreement with Gunderson's, a construction corporation, for the construction of this golf course. The agreement with Gunderson's included several provisions relating to compulsory arbitration.

A42 CORRECTION OF WORK AFTER FINAL PAYMENT.

.01 The contractor shall remedy any defects due to faulty materials or workmanship and pay for any damage to other work resulting therefrom, which shall appear within a period of one year from the date of final payment, or from the date of the OWNER'S substantial usage or occupancy of the Project, whichever is earlier, and in accordance with the terms of any special guarantees provided in the Contract. The OWNER shall give notice of observed defects with reasonable promptness. All questions arising under this Section shall be decided by GCA subject to arbitration, notwithstanding final payment.

A19 ARBITRATION

.01 All disputes, claims or questions subject to arbitration under this contract shall be submitted to arbitration in accordance with the provisions, then obtaining, of the Standard Form of Arbitration Procedure of the American Arbitration Association, and this agreement shall be specifically enforceable under the prevailing arbitration law, and judgment upon the award rendered may be entered in the court of the forum, state or federal, having jurisdiction. It is mutually agreed that the decision of the arbitrator shall be a condition precedent to any right of legal action that either party may have against the other.

.02 The contractor shall not cause a delay of the work during any arbitration proceeding except by agreement with the OWNER. Notice of the demand for arbitration of a dispute shall be filed in writing with the other party to the contract, and a copy filed with the GCA. The demand for arbitration shall be made within a reasonable time after the dispute has arisen; in no case, however, shall the demand be made later than the time of final payment, except as otherwise expressly stipulated in the Contract.

.03 The arbitrators, if they deem that the case requires it, are authorized to award to the party whose contention is sustained such sums as they or a majority of them shall deem proper to compensate him for the time and expense incident to the proceeding and, if the arbitration was demanded without reasonable cause, they may also award damages for delay. The arbitrators shall fix their own compensation, unless otherwise provided by agreement, and shall assess the costs and changes of the proceedings upon either or both parties.

The golf course was completed sometime in September of 1978. During construction, however, the City began experiencing numerous breaks, leaks and insufficient pressure in the underground irrigation sprinkler system. Despite these problems, the City made final payment. Because the problems continued to hamper use of the golf course, the City commenced this lawsuit against Gunderson's and Phelps-Benz. The City alleged that Gunderson's had negligently constructed the golf course and irrigation system and that Phelps-Benz had...