A. P. Brown Co. v. Superior Court In and For Pima County
| Decision Date | 24 November 1971 |
| Docket Number | CA-CIV,No. 2,2 |
| Citation | 16 Ariz.App. 38,490 P.2d 867 |
| Parties | , 57 A.L.R.3d 629 A. P. BROWN COMPANY, a domestic corporation, et al., Petitioners, v. The SUPERIOR COURT of the State of Arizona In and For the COUNTY OF PIMA, et al., Respondents. 1091. |
| Court | Arizona Court of Appeals |
David S. Wine and Carol Wilson Druke, Tucson, for petitioners.
Messing, Hirsh & Franklin by William Messing, Tucson, for real parties in interest.
We assume jurisdiction in this special action to review a Superior Court order as to the assessment of fees for arbitration. We are of the opinion, as we shall subsequently discuss, that the petitioners' jurisdictional challenge is well taken and the subject order was Coram non judice.
Briefly, the chronology of events is as follows. In 1970, the Kickerts commenced a suit for fraud and deceit against the petitioners in Superior Court. (The plaintiffs sought damages for the defendants' alleged fraud in inducing them to enter into a contract for the purchase of real estate.) The Kickerts, having elected to sue in tort rather than to rescind the contract, affirmed the contract. The defendants, in lieu of filing a responsive pleading, filed a motion to stay the action on the grounds that the contract required submission of the dispute to arbitration.
The trial court found that the matter should be the subject of arbitration and therefore ordered all proceedings stayed pending the outcome of arbitration proceedings. 1
The Kickerts then filled out the appropriate form and sent $50 for arbitration to the American Arbitration Assocation. The association, however, sent them a bill for an additional $1,100 to commence the arbitration. They thereupon petitioned the trial court to order the defendants (petitioners here) to pay this additional sum of $1,100, claiming as a reason therefor that it was the defendants who were forcing arbitration rather than the plaintiffs and that the plaintiffs did not have that sum of money. 2 A hearing was conducted on the petition by the respondent judge who thereupon ordered, in a 'Solomon-like' fashion, that the plaintiffs and defendants share the $1,100 burden equally. In other words the plaintiffs were required to pay the amount of $550 and the defendants a like amount.
The contract for the purchase of the real estate in question contained the following provision:
'In the event any disagreement which would be sufficient to maintain a claim in a court of competent jurisdiction shall arise, at any time, between any of the parties subscribed hereto, then and in that event each of said parties hereby agrees to be bound by the provisions of the American Arbitration Association And shall submit said disagreement to arbitration as provided by the rules thereof, said arbitration to be completed within 60 days of its institution.' (Emphasis supplied).
Section 47 of the Rules of the American Arbitration Association provides:
'As a nonprofit organization, the AAA shall prescribe an administrative fee schedule and a refund schedule to compensate it for the cost of providing administrative services. The schedule in effect at the time of filing or the time of refund shall be applicable.
The administrative fees shall be advanced by the initiating party or parties, subject to final apportionment by the Arbitrator in his award.
When a matter is withdrawn or settled, the refund shall be made in accordance with the refund schedule.
The AAA, in the event of extreme hardship on the part of any party, may defer or reduce the administrative fee.' (Emphasis added).
Our reason for granting relief to the petitioners is twofold: (1) The effect of a stay of proceedings is to prevent the taking of any further steps in the action during the period of the stay; therefore, the validity of the subject order is questionable. Rodriguez v. Rodriguez, 8 Ariz.App. 5, 442 P.2d 169 (1968). (2) Assuming arguendo that the subject order was merely 'in furtherance of the order requiring arbitration', as contended by the respondent, it is clearly contrary to the terms of the parties' contract.
It is well settled that courts must give effect to a contract as written. Good-man v. Newzona Investment Co., 101 Ariz. 470, 421 P.2d 318 (1966); Beaugureau v. Beaugureau, 11 Ariz.App. 234, 463 P.2d 540 (1970). Here, the parties' contract provided for submission of...
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