Dusold v. Porta-John Corp.
| Decision Date | 11 October 1990 |
| Docket Number | No. 1,PORTA-JOHN,CA-CV,1 |
| Citation | 807 P.2d 526,167 Ariz. 358 |
| Parties | Robert DUSOLD, Plaintiff-Appellant, v.CORPORATION, a Michigan corporation, Defendant-Appellee. 88-517. |
| Court | Arizona Court of Appeals |
Plaintiff/appellant Robert Dusold (Dusold) filed a negligence and products liability action against defendant/appellee Porta-John Corporation (Porta-John) and others, alleging that he suffered personal injuries from chemicals supplied by Porta-John. Porta-John moved to dismiss the complaint on the ground that an arbitration clause in the parties' contract divested the trial court of subject matter jurisdiction over the action.
In 1985, Dusold began servicing and cleaning Porta-John's portable toilets in Phoenix under a licensing agreement. The Service Contract Agreement (contract), drafted by Porta-John, contained a provision requiring arbitration in Michigan of "any controversy or claim arising out of, or relating to this agreement, or the breach thereof."
Pursuant to this contract, Porta-John supplied Dusold with all chemicals required to clean and service the toilets. After several months, Dusold allegedly suffered injury from exposure to these chemicals. On December 31, 1986, Dusold filed a complaint against Porta-John and others, 1 alleging that Porta-John failed to warn him of the dangerous and toxic nature of these chemicals and also failed to provide him with adequate instructions for their safe use.
Porta-John moved to dismiss Dusold's complaint pursuant to Rule 12(b)(1) and (6), Arizona Rules of Civil Procedure, contending that, as a result of the arbitration provision, arbitration in Michigan was Dusold's exclusive remedy for his personal injury tort claim and that, therefore, Dusold's complaint failed to state a claim upon which relief could be granted by an Arizona state court. In that same motion, Porta-John asked for an order compelling arbitration and staying judicial proceedings pursuant to A.R.S. § 12-1502.
In its minute entry following the hearing on Porta-John's motion, the trial court expressed "some doubts about the fairness of compelling an Arizona Plaintiff in a multi-defendant tort case to arbitrate in Michigan his claim against the primary defendant." Nevertheless, the court found that Dusold's claims "ar[o]se out of or relat[ed] to ... his agreement with Defendant Porta-John; they [were] for personal injuries Plaintiff received while performing on that agreement." The court further found that both statute and case law required that all issues be resolved in favor of arbitration. The court granted Porta-John's motion, entered judgment dismissing all claims against Porta-John, and ordered the parties to arbitrate those claims according to the terms of their contract. The judgment, which had been prepared and submitted by Porta-John and which conformed to the court's minute entry order, contained Rule 54(b) language that the court found "no just reason for delay in entry of the judgment of dismissal as to defendant Porta-John." See Rule 54(b), Arizona Rules of Civil Procedure.
Dusold timely appealed from that judgment, claiming:
(1) that the arbitration clause in the contract applied only to contract disputes and not to personal injury tort claims;
(2) that even if the clause was found to be broad enough to include personal injury claims, application of it to Dusold's personal injury claim abrogated his constitutional right to recover damages in a trial by jury in Arizona; and
(3) that, even if the arbitration agreement was valid as to Dusold's personal injury claims and did not violate his constitutional rights, then either (a) the superior court did not have power to compel arbitration in another state, or (b) it was unreasonable in this case, and/or against the public policy of Arizona, to require arbitration in Michigan.
On January 17, 1989, along with its answering brief, Porta-John filed a motion to dismiss the appeal on the ground that an order compelling arbitration is a nonappealable, interlocutory order under Roeder v. Huish, 105 Ariz. 508, 467 P.2d 902 (1970). This court ordered postponement of Porta-John's jurisdictional argument until disposition on the merits. We first address the jurisdictional question.
Porta-John asserts that an order of the trial court compelling arbitration is interlocutory and therefore not appealable pursuant to A.R.S. § 12-2101.01 2 and Roeder v. Huish.
Dusold argues that the order challenged here resulted in a judgment dismissing all claims against Porta-John, while the order in Roeder was simply an order granting the defendant's application for arbitration and for stay of proceedings pending arbitration, and, thus, Roeder is distinguishable. Further, Dusold points out, the court specifically included Rule 54(b) language in its judgment and left no claims pending before the trial court as to Porta-John. The judgment, submitted by Porta-John and adopted in full by the court, states in pertinent part:
1. All claims against defendant Porta-John corporation are dismissed and defendant Porta-John is dismissed from this action.
2. The parties are ordered to arbitrate those claims in the State of Michigan according to the terms of their contract.
3. There is no just reason for delay in entry of judgment as to defendant Porta-John.
Porta-John argues that an order to arbitrate is by its nature interlocutory, and the trial court cannot transform it into a final order simply by incorporating it within a final judgment. Thus, Porta-John asks this court to either dismiss the appeal because of the intrinsically interlocutory nature of the arbitration order or to remand to the trial court for issuance of an order compelling arbitration and staying proceedings pending the outcome of arbitration.
We begin our analysis with a comparison of the proceedings here with those in Roeder. In both cases, the parties had entered a contract containing a standard arbitration clause. 105 Ariz. at 509, 467 P.2d at 903. In Roeder, the defendants had filed an application requesting the court to compel arbitration pursuant to the terms in their contract. Id. The plaintiffs objected. The trial court granted the defendants' application and ordered the parties to arbitrate. Prior to arbitration, the plaintiffs appealed from the trial court's order. The court of appeals dismissed the appeal on the ground that "the order which is the subject of the appeal is an interlocutory order, not expressly made subject to an appeal and, therefore, is not an appealable order." Id. On petition for review, the Arizona Supreme Court upheld the court's dismissal of the appeal and further held that an objecting party could "raise the issue of arbitrability ... by objecting to the trial court's confirmation of arbitration award." Id. at 510, 467 P.2d at 904.
Initially, we point out that this case, unlike Roeder, involves a motion to dismiss claims pursuant to Rule 12(b)(1) and (6), not simply an application for an order to compel arbitration. The relief Porta-John sought was granted--the trial court dismissed all claims against Porta-John, and included Rule 54(b) language indicating finality. Such a judgment of dismissal, under either Rule 12(b)(1) or (6), is a final, appealable order under A.R.S. § 12-2101(B). See King v. Superior Court, 138 Ariz. 147, 150 n. 3, 673 P.2d 787, 790 n. 3 (1983). We have previously addressed the issue whether arbitration was properly compelled in the context of an appeal from dismissal of a claim pursuant to Rule 12(b)(1) and (6) that included Rule 54(b) language. See Payne v. Pennzoil Corp., 138 Ariz. 52, 672 P.2d 1322 (App.1983). This form of final, appealable judgment was not at issue in Roeder.
What further distinguishes Roeder from the present case is that Porta-John seeks arbitration in Michigan, and argued to the trial court that Michigan arbitration would divest Arizona of subject matter jurisdiction. We need not determine the merits of that contention except to note that we would have jurisdiction over an appeal from such an order as affecting a substantial right which "in effect determines the action and prevents judgment from which an appeal might be taken." A.R.S. § 12-2101(D). Porta-John fails to show us how, if this order is to be considered interlocutory and not appealable, Dusold would ever be able to obtain appellate relief over the "final" judgment in this court. Under Porta-John's own reasoning, therefore, the order would be appealable even if interlocutory. See A.R.S. § 12-2101(D).
Because we have jurisdiction to consider at least the dismissal and jurisdictional aspects of the trial court's order (transfer of arbitration to Michigan), we have jurisdiction over this appeal. Furthermore, any intermediate orders incorporated into that judgment are also reviewable once subject matter jurisdiction has been acquired. See State v. Rodriguez, 163 Ariz. 391, 788 P.2d 124 (1990). Consequently, we have jurisdiction to consider the applicability of the arbitration clause to Dusold's negligence and products liability claims.
Dusold's main argument is that the arbitration clause in his contract with Porta-John does not subject him to arbitration in Michigan over his tort action in Arizona for negligence and products liability against Porta-John. The arbitration clause at issue here provided as follows:
Any controversy or claim arising out of, or relating to this agreement, or the breach thereof, shall be settled by arbitration in the state of Michigan where PORTA-JOHN conducts its principal business, in accordance...
To continue reading
Request your trial
-
Lovey v. Régence BlueShield of Idaho
...or construction of some portion of the contract itself. Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla.1999); Dusold v. Porta-John Corp., 167 Ariz. 358, 807 P.2d 526 (App.1990). The required relationship between the dispute and the contract does not exist simply because the dispute would no......
- State v. Vasquez
-
Garza v. Swift Transp. Co., Inc.
...(App.2000) (accepting § 12-2101(D) jurisdiction when case dismissed for lack of personal jurisdiction); Dusold v. Porta-John Corp., 167 Ariz. 358, 361, 807 P.2d 526, 529 (App. 1990) (asserting as alternative basis for jurisdiction that when dismissal was for lack of subject matter jurisdict......
- Davis v. Charles John Tuma, Donald J. Mccanlies, Johnson House Co.