Citation669 A.2d 717
Decision Date29 December 1995
Docket NumberNo. 92-CV-1088,92-CV-1088
CourtCourt of Appeals of Columbia District
PartiesJohn UMANA, Appellant, v. SWIDLER & BERLIN, CHARTERED, et al., Appellees.


Robert W. Steele, Washington, DC, for appellant.

Scott L. Nelson, Washington, DC, for appellees.

Garland Pinkston, Jr., Acting Corporation Counsel at the time the brief was filed, Charles L. Reischel, Deputy Corporation Counsel, and Edward E. Schwab, Assistant Corporation Counsel, filed a brief on behalf of the District of Columbia as amicus curiae.

Before TERRY and RUIZ, Associate Judges, and PRYOR, Senior Judge.

Opinion concurring in the result by Associate Judge TERRY at p. 724.

RUIZ, Associate Judge:

In this appeal, John Umana, plaintiff-appellant, asks us to review an order of the Superior Court confirming an arbitral award in favor of one of the defendants-appellees, Swidler & Berlin, Chartered. Umana also asks us to review the trial court's order that he arbitrate his still-pending claims against the other defendants-appellees, who are individual members of the Swidler firm. We hold that the entire appeal must be dismissed for want of jurisdiction because the trial court's orders make clear that there has been no judgment on Umana's claims against the individual firm members, which comprise part of this action.


Umana sued Swidler and members of the firm (the firm members),1 contending that they had wrongfully deprived him of membership in the firm. The defendants moved to compel arbitration pursuant to a clause in a contract between Umana and the firm.2 The trial court granted the motion, ordering that "all claims" be arbitrated and staying the entire litigation. Umana and Swidler (but not the individual firm members) subsequently arbitrated their claims against one another.3 Umana's claims against Swidler were denied in their entirety. Swidler prevailed in part on its counterclaims against Umana. After Swidler substantially prevailed in the arbitration, Umana filed a motion in the pending civil action asking that the court vacate the award. Swidler, in turn, sought confirmation of the award, which the trial court granted. Umana now appeals the order confirming the award in favor of Swidler and the order compelling arbitration with the firm members. The parties agree that Umana's claims against the firm members are still pending in the trial court. The trial court did not direct the entry of final judgment in favor of Swidler under Superior Court Rule of Civil Procedure 54(b).

At oral argument, we raised sua sponte the issue of our jurisdiction to hear this appeal in light of the pending unresolved claims against the firm members.4 See Dyhousev. Baylor, 455 A.2d 900, 901 (D.C. 1983) (per curiam). The parties filed post-argument briefs addressing the jurisdictional issue. Umana now takes the position that this court lacks jurisdiction over the appeal he filed. Swidler contends that the order confirming the award in its favor is appealable by virtue of section 18 of the District of Columbia Uniform Arbitration Act (DCUAA), enacted by the District of Columbia Council in 1977. D.C. Code § 16-4317 (1989).5 Upon our invitation, see D.C.App.R. 53, the District of Columbia, through the Office of the Corporation Counsel, filed a brief as amicus curiae arguing that § 16-4317, if interpreted to permit an appeal in the circumstances of this case, would not contravene the District of Columbia Self-Government and Governmental Reorganization Act, Pub.L. 93-198, 87 Stat. 774 (Dec. 24, 1973) (Home Rule Act).6


Although in several cases involving arbitration we have relied upon § 16-4317 in noting our jurisdiction, we have never decided that the statute confers jurisdiction upon this court under the circumstances of the present appeal.7 In determining the scope of our prior holdings, it is important that we examine the contexts in which they were made. "It is well to remember that significance is given to broad and general statements of law only by comparing the facts from which they arise with those facts to which they supposedly apply." Kraft v. Kraft, 155 A.2d 910, 913 (D.C. 1959). In the present case, the questions we must address are whether § 16-4317 of the DCUAA attempts to confer jurisdiction upon this court to review an order confirming an arbitral award while a related claim against another party is pending before the trial court in the same case, and, if so, whether such a grant of jurisdiction is within the Council's legislative authority. Neither of those questions was resolved in any of our cases citing § 16-4317.

As mentioned above, Umana appeals the trial court's orders 1) confirming the arbitration award in favor of Swidler and 2) compelling arbitration of Umana's claims against the members. Most of the cases in which we cited § 16-4317 involved orders denying motions to compel arbitration, not an order compelling arbitration. See Benefits Communications Corp., supra note 7, 642 A.2d at 1300; Friend, supra note 8, 609 A.2d at 1138-39; Hercules & Co., supra 8, 592 A.2d at 1071; see also Robinson, supra note 8, 561 A.2d at 484 (stating8 that subsequent entry of default judgment could not revive right to immediate appeal of previous order denying motion to compel arbitration, where time for appeal had lapsed). One case concerned an order vacating an arbitral award, not confirming it as in the instant case. See Shaff, supra note 8, 617 A.2d at 961 & n. 3.

In the one case in which the order appealed compelled arbitration, like the order appealed by Umana concerning his claims against the individual members, we held that we had no jurisdiction. In American Federation of Government Employees, supra note 8, the appellant sought our review of an order compelling arbitration, as Umana does here. We dismissed the appeal as premature because judgment had not been entered in the action, holding that the omission of orders compelling arbitration from § 16-4317(a) evinced an intent to preclude appeals from such orders. 439 A.2d at 480; cf. Haynes, supra note 8, 591 A.2d at 1287 n. 1 ("To challenge the . . . order compelling arbitration, appellant properly appeals from the . . . order of the trial court confirming the eventual arbitration decision.").

In those cases in which the appellant challenged the other type of order Umana appeals in the present case, confirmation of an award, the underlying judgment disposed of all claims as to all parties. See Haynes, supra note 8, 591 A.2d at 1288 & n. 2, 1289 n. 4 (reciting that trial court directed parties "to arbitrate the disputes in this action," "stayed the . . . case pending arbitration," and, after arbitration was completed, "the trial judge confirmed the award and judgment was entered"); Tung, 492 A.2d at 269 (reciting facts showing that the trial court was not involved until appellant filed motion to vacate arbitration award, which was denied); Poire, supra note 8, 491 A.2d at 532 (reciting that parties were ordered to proceed to arbitration and the litigation stayed until the arbitration award was confirmed). In fact, in Tung we noted that "[s]ince the trial court's order finally determined the rights and obligations of the parties, it was final for purposes of appeal." 492 A.2d at 268 n. 1 (citation omitted).

In sum, we have never held that § 16-4317 confers appellate jurisdiction under the circumstances of the present case where no judgment has been entered with respect to some of the parties in the action. Moreover, in none of the cases in which we have relied on § 16-4317 in addressing our jurisdiction did we decide whether that section was within the power of the Council to enact. "Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents." Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 149, 69 L.Ed. 411 (1925), quoted in Murphy v. McCloud, 650 A.2d 202, 205 (D.C. 1995). If a court in reaching a decision has not considered a particular point, then " 'the connection of the decision with that point is not a connection of effect and cause, but is purely accidental, and as to that point the decision is no authority whatever.' " United States v. Kucik, 844 F.2d 493, 498 (7th Cir. 1988) (quoting WAMBAUGH, THE STUDY OF CASES 24-25 (2d ed. 1894)). In short, a rule of law should be the product of deliberation, not mere chance.9 In particular, a decision passing upon a jurisdictional issue sub silentio is not precedent on that issue. Murphy, supra 650 A.2d at 205; see also, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 119, 104 S.Ct. 900, 918, 79 L.Ed.2d 67 (1984); United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 38, 73 S.Ct. 67, 69 & n. 9, 97 L.Ed. 54 & n. 9 (1952) (citing cases). Hence, both the application of § 16-4317 to the facts of the present case and the validity of the section are open questions.


This court's jurisdiction over appeals from the Superior Court extends to "final orders and judgments" and to certain interlocutory orders. D.C. Code § 11-721(a) (1995).10 The order compelling Umana to arbitrate his claims against the individual firm members is not a final order. It is also not an appealable interlocutory order under the standard we adopted in Brandon v. Hines, 439 A.2d 496, 506-07 (D.C. 1981), because it does not "frustrate (in contrast with facilitate) arbitration."11 Nor does § 16-4317 attempt to make an order compelling arbitration appealable. See American Fed'n Gov't Employees, supra note 8, 439 A.2d at 480. Therefore, Umana's attempt to appeal the order compelling arbitration with the firm members must fail.

A decision confirming an arbitral award is, on the other hand, a final order, because for all practical purposes it signifies the end of the proceeding on the merits, unless the court decides...

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