Poire v. Kaplan, 84-834.

• Citation: 491 A.2d 529
• Case Date: April 30, 1985
• Court: Court of Appeals of Columbia District

491 A.2d 529 Margaret POIRE, Appellant,
v.
Julius KAPLAN, Appellee. No. 84-834. District of Columbia Court of Appeals. Argued February 13, 1985. Decided April 30, 1985.

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Margaret A. Beller, Washington, D.C., with whom Carolyn R. Just, Washington, D.C., was on brief, for appellant.

Joel E. Leising, Washington, D.C., for appellee.

Before FERREN, BELSON and ROGERS, Associate Judges.

ROGERS, Associate Judge:

This is an appeal from an order confirming an arbitration award and the denial of a motion for reconsideration.¹ Appellant contends that the trial court erred in staying the litigation while ordering the parties to arbitrate their dispute, and that the arbitration award should be vacated. We affirm.

I

The parties entered into a joint venture agreement to purchase appellant's apartment and parking space, which became available during a condominium conversion. The agreement provided for payment of specific costs by each party and that the property was not to be sold, leased, or otherwise conveyed except upon their written agreement. If the parties could not agree about selling the property, their dispute would be determined by binding arbitration.² The property was purchased and appellant continued to live in it for about a year, until she moved in connection with other employment. When appellant failed to continue to pay the condominium fees and to assume her contractual obligation to make the mortgage payments, appellee paid them until the property was sold. At or before the sale of the property, appellee learned that appellant had leased the parking space without his knowledge or consent.

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Following the sale of the property, appellee sought to recover from appellant what she should have paid under the joint venture agreement. Unable to reach agreement, appellee sued for an accounting, breach of contract, and fraud; he sought compensatory damages of $16,492 with interest and any additional amount which the accounting would show due, and exemplary damages of $100,000. Appellant filed a motion to dismiss on the grounds that the parties' exclusive remedy under paragraph 6 of their agreement was to arbitrate any dispute regarding the sale or lease of the unit or parking space, and by not applying for arbitration prior to the sale, appellee had waived the right to request arbitration and, upon sale of the property, the entire agreement between the parties was fully executed. Appellee opposed the motion to dismiss on the ground that paragraph 6 applied only to disputes arising out of the sale or lease of the property, and not to disputes arising from the entire joint venture agreement.

At the hearing on the motion to dismiss on May 3, 1983, the trial court stated it did not agree with appellant's interpretation of the joint venture agreement and asked appellant's attorney whether appellant sought dismissal because appellee did not seek to enter into arbitration at the right time. She responded:

Yes, Your Honor, because putting this matter into litigation for Mr. Kaplan is not a terribly expensive arrangement. For Ms. Poire who has to hire me, it becomes a rather expensive arrangement. This is something that Ms. Poire relied upon, agreed to, and I believe she is entitled to it. Now there would be an optional arrangement which would be to refer the matter to arbitration. I believe there are cases which show that if arbitration is agreed to and there is a suit filed, the matter will be referred for arbitration.

Appellee agreed to appellant's "optional arrangement," and referred to the court's authority to order arbitration under D.C. Code § 16-4302 (1981).³ The trial court therefore ordered the parties to proceed to arbitration and stayed the litigation.

The parties entered into an agreement on September 8, 1983 to submit their dispute to the American Arbitration Association.⁴ On November 18, 1983, an American Arbitration Association arbitrator issued an award requiring appellant to pay appellee $10,757 and appellee to pay the administrative fees and expenses of the arbitration. On March 30, 1984, appellee filed motions to confirm the arbitration award as a judgment, to lift the stay of May 3, 1983, and to amend the complaint. No opposition was filed. The stay was lifted on April 13, 1984, and the arbitration agreement was confirmed on April 16, 1984. Appellant filed a motion to reconsider on April 25, 1984, which was denied on May 18, 1984 as untimely and lacking merit.

II

In deciding whether the trial court correctly ordered the parties to proceed to arbitration, we start by determining whether the parties agreed to arbitrate the disputes arising under appellee's complaint. Ballard & Associates v. Mangum, 368 A.2d 548, 551 (D.C. 1977). The record shows the parties expressly agreed at the

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May 3, 1983 hearing to submit the dispute based on appellee's complaint to a mutually agreeable arbitrator. Where parties in open court enter into an agreement to arbitrate and secure the court's approval of their agreement, such agreement becomes an order of the court which is binding on the parties. See Brandon v. Hines, 439 A.2d 496, 501 (D.C. 1981). Furthermore, the record shows that appellant did not press her claim for a dismissal at that time and later signed a submission to arbitration agreement which set forth all of appellee's claims in his complaint. Having suggested arbitration and participated in arbitration, appellant cannot now be heard to complain that the trial court erred in following her suggestion.

The arbitration was conducted pursuant to a new arbitration agreement which the parties entered into on September 8, 1983, based on their agreement of May 3, 1983, and not pursuant to paragraph 6 of their joint venture agreement. The record before us does not support appellant's...