Roeder v. Huish

• Decision Date: 16 April 1970
• Docket Number: No. 9902--PR,9902--PR
• Citation: 105 Ariz. 508,467 P.2d 902
• Parties: John D. ROEDER and Audrey Roeder, his wife, Appellants, v. L. Rae HUISH, dba Huish Construction Company; Reliance Insurance Company, etal., Appellees. . In Banc
• Court: Arizona Supreme Court

Page 902

467 P.2d 902

105 Ariz. 508

John D. ROEDER and Audrey Roeder, his wife, Appellants, v. L. Rae HUISH, dba Huish Construction Company; Reliance Insurance Company, etal., Appellees.

No. 9902--PR.

Supreme Court of Arizona. In Banc.

April 16, 1970.

Langerman, Begam & Lewis, by Frank Lewis, Phoenix, for appellants.

Kenneth G. Flickinger, Jr., Phoenix, for appellees.

HAYS, Justice.

John and Audrey Roeder, husband and wife and plaintiffs below, contracted with the Huish Construction Company, defendant, to have the latter construct a home for them. The contract was signed by both parties in May of 1966. A dispute arose concerning the performance of the contract, after which plaintiffs brought a cause of action against defendant, alleging breach of contract.

The contract contained a standard arbitration clause, which reads partially as follows:

'Any disagreement arising out of this contract or from the breach thereof shall be submitted to arbitration, adn judgment upon the award rendered may be entered in the court of the forum, state or federal, having jurisdiction. It is mutually agreed that the decision of the arbitrators shall be a condition precedent to any right of legal action that either party may have against the other.'

Defendant answered plaintiffs' complaint, counterclaimed for other alleged damages, and at the same time filed an application to compel arbitration as provided by the Uniform Arbitration Act, A.R.S. § 12--1502, subsec. A. Plaintiffs filed a timely objection to defendant's application to compel arbitration, contending that defendant, by its conduct, had waived its right to demand arbitration. This is the point at which the objections must be asserted in order to preserve the objecting party's position for ultimate review, if an appeal becomes necessary. See Bolo Corporation v. Homes & Son Construction Co., Inc., 105 Ariz. 343, 464 P.2d 788 (1970).

A hearing was held concerning defendant's application to compel arbitration, after which the trial court granted defendant's application and ordered the parties to proceed to arbitration. All proceedings concerning plaintiffs' original suit were stayed pending arbitration. A.R.S. $ 12--1502, subsec. D. Prior to arbitration, plaintiffs appealed the trial court's order to the Court of Appeals, which 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, it is not an appealable order.' See A.R.S. § 12--2101.01. Plaintiffs' motion for rehearing was denied, and we denied review on January 20, 1970.

On January 28, 1970, twelve days after our opinion in Bolo Corp., supra, was handed down, plaintiffs filed a motion for reconsideration with the Court, contending that our opinion in Bolo Corp. was inconsistent with the Court of Appeals' holding that the trial court's order compelling arbitration was a non-appealable order. We granted plaintiffs' motion for reconsideration in order to clarify the procedural rules governing the appeals of such orders compelling arbitration.

Bolo Corp., supra, involved an appeal from a trial court judgment confirming an arbitration award. In addition to contesting the arbitration award on its merits, the appellant Bolo Corporation also contended that the arbitration award should be vacated because the appellee, Homes & Son Construction Co., had...