Pueblo of Laguna v. Cillessen & Son, Inc.

• Decision Date: 30 May 1984
• Docket Number: No. 14731,14731
• Parties: PUEBLO OF LAGUNA, Petitioner-Appellee v. CILLESSEN & SON, INC. and William G. Barber & Associates, Inc., Respondents-Appellants.
• Court: New Mexico Supreme Court

Page 197

682 P.2d 197

101 N.M. 341

PUEBLO OF LAGUNA, Petitioner-Appellee v. CILLESSEN & SON, INC. and William G. Barber & Associates, Inc., Respondents-Appellants.

No. 14731.

Supreme Court of New Mexico.

May 30, 1984.

Toulouse, Toulouse & Garcia, James R. Toulouse, Roy F. Miller, Jr., Hartley B. Wess, Albuquerque, for respondents-appellants

Nordhaus, Haltom & Taylor, Lester K. Taylor, Albuquerque, for petitioner-appellee.

OPINION

SOSA, Senior Justice.

This matter arose after Laguna Pueblo (Laguna) petitioned the district court to compel consolidation of arbitration proceedings arising out of two contracts.

The controlling issues on appeal are whether an affidavit of disqualification of a judge was properly denied as untimely by the district court and whether the court erred in consolidating separate arbitration proceedings. We reverse and remand.

Laguna entered into separate contracts with respondents William G. Barber & Associates, Inc. (Barber) and Cillessen and Son, Inc. (Cillessen) to design and construct a health care facility. Each contract provided that all claims arising under it would be subject to arbitration. After the project was completed, disputes arose regarding problems with the exterior walls of the facility and related problems.

On June 15, 1982, Laguna initially petitioned the district court to consolidate arbitration proceedings against Cillessen and Barber pursuant to the arbitration clauses contained in its contract with each party. On August 27, 1983, Laguna filed its first amended petition to consolidate. Cillessen filed a response to Laguna's initial petition on August 30, 1982. On August 31, Laguna filed a second amended petition to consolidate. Cillessen filed an affidavit of disqualification of judge on October 26, which affidavit was denied as untimely by the district court. Cillessen filed a response to Laguna's second amended petition on November 1, 1982.

The provisions governing the timely filing of affidavits of disqualification ¹ are set forth at NMSA 1978, Section 38-3-10. This section provides that the affidavit "shall be filed within ten days after the cause is at issue or within ten days after the time for filing a demand for jury trial has expired, or within ten days after the judge sought to be disqualified is assigned to the case, whichever is the later."

A case is deemed "at issue" when an answer is filed which requires no further pleadings by the plaintiff. Atol v. Schifani, 83 N.M. 316, 491 P.2d 533 (Ct.App.1971); see also Gray v. Sanchez, 86 N.M. 146, 520 P.2d 1091 (1974). Cillessen argues that its affidavit was timely since the cause was not placed in issue until November 1, 1982, the date Cillessen filed its response to Laguna's second amended petition of August 31. Laguna maintains that Cillessen's first response on August 30, 1982 to Laguna's initial consolidation petition effectively put the cause at issue.

Laguna's argument ignores the fact that two subsequent amendments were required to cure defects in the designation of the Barber business name which had appeared in Laguna's initial petition to consolidate. Absent these amendments, Barber would not have been formally included as a party. Laguna's first and second amended petitions were thus required to effectively add Barber as the crucial third party to Laguna's proposed consolidated arbitration between itself, Cillessen and Barber. As such, the action to consolidate was not placed at issue until November 1, 1982, the date Cillessen filed its response to Laguna's second amended petition. Cillessen's October 26, 1982 affidavit of disqualification was filed within the requisite ten day period under Section 38-3-10 and was therefore timely. The district court erred in failing to honor the disqualification.

Since the district judge was properly disqualified, it had power only to perform mere formal acts subsequent to the disqualification. State v. Compton, 57 N.M. 227, 239, 257 P.2d 915, 923 (1953). After the affidavit of disqualification was filed, the judge had no jurisdiction to act in matters involving the exercise of his discretion. See State v. Compton, 57 N.M. at 239, 257 P.2d at 923; State ex rel. Pacific Employer's Insurance Co. v. Arledge, 54 N.M. 267, 268, 221 P.2d 562, 563 (1950). Its subsequent consolidation order was therefore without legal effect. Nevertheless, we address the propriety of consolidating the separate Cillessen and Barber arbitration proceedings on the merits since the question is one of first impression in this state and one which will arise in subsequent proceedings after remand in this case.

The narrow issue we address is whether a trial court may consolidate separate arbitration proceedings absent an agreement among all the parties to the proposed consolidation.

Barber and Cillessen entered into separate contracts with Laguna for architectural and general contracting services, respectively. While the two contracts differ substantially in their terms and scope, they do contain similar arbitration clauses binding upon the parties to each agreement. Laguna's agreement with Barber provides in relevant part that the "claims, disputes and other matters in question arising out of, or relating to, this Agreement or the breach thereof shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining." The Laguna-Cillessen contract states the "claims or disputes arising out of this Contract or the breach thereof shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise."

Cillessen asserts the district court's action in consolidating the arbitration action between it and Laguna with the dispute between Barber and Laguna had no basis either in the agreements of the parties or in any applicable statutory provisions. Laguna argues the district court properly consolidated since the two disputes arose out of a single transaction and involved common questions of law and fact.

Under the New Mexico Uniform Arbitration Act (Act), NMSA 1978, Sections 44-7-1 to 44-7-22, New Mexico courts have jurisdiction to compel arbitration where an agreement to arbitrate is found. Secs. 44-7-1, 44-7-2 and 44-7-17; Bernalillo County Medical Center Employees' Ass'n v. Cancelosi, 92 N.M. 307, 587 P.2d 960 (1978). Courts are to interpret the provisions of arbitration agreements by the rules of contract law and are to apply the plain meaning of the language utilized, Christmas v. Cimarron Realty Co., 98 N.M. 330, 332, 648 P.2d 788, 790 (1982), in order to give effect to the agreements struck by the parties. See Hopper v. Reynolds, 81 N.M. 255, 261, 466 P.2d 101, 107 (1970). The terms of the arbitration agreement set forth the parameters concerning the matters to be arbitrated. See Christmas; Bernalillo County Medical Center Employees' Ass'n.

There can be no question under these contracts that the proper forum for the resolution of disputes is before an arbitrator. However, neither the provisions quoted, nor any other clauses in either contract provide for the arbitration of disputes other than those arising between the...