FA Dobbs and Sons, Inc. v. Northcutt
Decision Date | 02 November 2001 |
Parties | F.A. DOBBS AND SONS, INC. v. Dr. David NORTHCUTT and Dr. Tracy Northcutt. |
Court | Alabama Supreme Court |
W. Beatty Pearson and Michelle A. Meurer of Pearson, Cummins & Hart, L.L.C., Spanish Fort, for appellant.
Mark S. Gober of Law Office of David P. Shepherd, Fairhope, for appellees.
F.A. Dobbs and Sons, Inc. ("Dobbs"), appeals the order of the trial court denying its motion to dismiss or, in the alternative, to compel arbitration. We conclude that the denial of this motion to dismiss is not reviewable. We affirm the denial of the motion to compel arbitration.
Dr. David Northcutt and Dr. Tracy Northcutt contracted with Dobbs for Dobbs to construct a one-story wood-frame building for use as a professional dental office. The "STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR ON THE BASIS OF A STIPULATED PRICE" provides, in pertinent part:
Attached to the agreement are the "NOTICE OF AWARD," "NOTICE TO PROCEED," and "STANDARD GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT" (emphasis added). Articles 9 and 16 of the general conditions of the construction contract provide, in relevant part:
The Northcutts sued Dobbs for breach of the express warranties in certain paragraphs of the general conditions of the construction contract, for breach of implied warranties, breach of contract, fraud, fraudulent suppression, deceit, and outrage. After Dobbs answered, Dobbs moved to dismiss the action for the Northcutts' "failure ... to satisfy conditions precedent prior to filing suit" or, in the alternative, to compel arbitration. Attached to the motion to dismiss were a copy of the agreement and its attachments and an affidavit from Wayne Dobbs, the president of Dobbs. Dobbs grounded its motion to dismiss on the Northcutts' failure to comply with paragraph 9.11 of the general conditions of the construction contract, supra, requiring that disputes initially be referred to ENGINEER. Following a hearing, the trial court denied the motion to dismiss or, in the alternative, to compel arbitration.
On appeal, Dobbs contends that the Northcutts' failure to comply with paragraph 9.11 requires dismissal of the Northcutts' action. Rule 12(b), Ala. R. Civ. P., provides, in pertinent part:
"If, on a motion asserting the defense number (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summery judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."
Therefore, Dobbs's attaching exhibits to its motion to dismiss effectively converted it to a summary judgment motion. An order denying summary judgment is not an appealable order (except by Rule 5, Ala. R.App. P., permission, not sought or granted in this case). Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369 (Ala.2001); Ex parte Rizk, 791 So.2d 911 (Ala.2000); Superskate, Inc. v. Nolen, 641 So.2d 231 (Ala.1994). Therefore, we do not address the merits of the defense of condition precedent asserted by Dobbs.
Dobbs contends also that the trial court erred in denying the motion to compel arbitration. Dobbs argues that, because the Northcutts did not offer "any evidence in opposition to [Wayne Dobbs's affidavit] ... [the Northcutts] cannot expect to defeat the Defendant's evidence with bald assertions." Relying on Ex parte Costa & Head (Atrium), Ltd., 486 So.2d 1272 (Ala.1986), Dobbs argues that the "agreement reflects a transaction involving interstate commerce," and that "[t]he requirement of the FAA [Federal Arbitration Act] that an arbitration agreement `involve commerce' has been construed very broadly so that the slightest nexus of the agreement with interstate commerce will bring the agreement within the ambit of the FAA." 486 So.2d at 1275. Since Ex parte Costa & Head (Atrium), Ltd., was decided, this Court has more accurately articulated the nexus between the agreement or transaction and interstate commerce that is prerequisite to the applicability of the Federal Arbitration Act. In Southern United Fire Insurance Co. v. Knight, 736 So.2d 582, 585-86 (Ala. 1999), this Court held:
(Emphasis added.)
In Rogers Foundation Repair, Inc. v. Powell, 748 So.2d 869, 872 (Ala.1999), we held:
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