Wе granted interlocutory appeal to determine whether the trial court erred in dissolving a temporary injunction restraining defendant AAA Mechanical Contractors, Inc., from submitting to arbitration its portion of the construction contract dispute involved in this multiparty litigation. We find that the dispute should be litigated rather than arbitrated so the entire controversy can be resolved in one forum. Therefore we reverse the trial court.
Plaintiff Cоunty of Jefferson brought this action against an architectural firm, an engineering firm, and various contractors and sureties, seeking damages based on its dissatisfaction' with their performance in the construction of a county care facility. Design Associates is the architectural firm; Moore-Bingham & Associates, Inc., is the engineering firm; Barton-Douglas Contractors, Inc., AAA Mechanical Contractors, Inc., and Wayne Mayhew are the contractors; Insurance Company of North America (INA), Merchants Mutual Bonding Company, and Hawkeye-Security Insurance Company are the sureties.
Plaintiff entered into individual contracts with Design Associates, Barton-Douglas, AAA Meсhanical and Wayne Mayhew. Moore-Bingham was employed by Design Associates and did not have a contract with plaintiff. INA, Merchants Mutual and Hawkeye-Security are the contractors’ performance bond sureties.
The petition alleged breach of contract and negligence against Design Associates, Barton-Douglas, AAA Mechanical and May-hew through defective design, deficient performance and delay. A similаr claim was made against Moore-Bingham based on negligence alone. The sureties were alleged to be liable on the performance bonds. Plaintiff asked joint and several judgment against all defendants for $250,000.
An ex parte injunction was issued against AAA Mechanical on the strength of plaintiff’s affidavit supporting the allegations of the petition. After hearing, the trial court sustained AAA Mechanical’s motion to dissolve the injunction. We now review that interlocutory ruling.
We note two preliminary problems before doing so. First, the trial court gave no reason for its ruling dissolving the temporary injunction. Therefore we do not know the basis of the ruling. Second, AAA Mechanical did not file an appellee’s brief until the date this appeal was submitted, more than five months after the appellant’s brief was filed. No order extending the time was obtained. Beсause of this violation of Iowa R.App.P. 13(a), we strike appellee’s brief and give no consideration to it.
This is an appropriate case for applying principles adopted in
Bowen v. Kaplan,
We faced the same problem in
Pringle Tax Service, Inc. v. Knoblauch,
In this case, we elect to limit our consideration to the issues and arguments in the appellant’s brief.
Plaintiff urges two contentions in seeking rеversal. One is that the arbitration agreements do not comply with chapter 679 and hence are revocable. The other is that the policy of our law which favors resolution of related claims in one proceeding requires an injunction against the attempt by AAA Mechanical to have its dispute decided separately through arbitration.
The arbitration agreements in this case do not meet the requirements of section 679.2, The Code. It provides:
The parties themselves, or those persons who might lawfully have controlled a civil action in their behalf for the same subject matter, must sign and acknowledge a written agreement, specifying рarticularly what demands are to be submitted, the names of the arbitrators, and court by which the judgment on their award is to be rendered.
The contracts here incorporate by reference the Construction Industry Arbitration Rulеs of the American Arbitration Association as the means of settling contract disputes. The contract signatures are not acknowl-édged, and the contract does not specify what demands are to be arbitrated, name the arbitrators, nor identify the court by which judgment on the arbitration award is to be rendered. Therefore the agreements cannot be enforced on a statutory basis.
Koht v. Towne,
Agreements for arbitration which dó not comply with statutory requirements are governed by common-law principles.
First National Bank v. Clay,
We have consistently followed the general common-law rule that an executory arbitration аgreement is revocable at any time. See
Joseph L. Wilmotte & Co. v. Rosenman Bros.,
The question of changing the common-law rule was recently discussed in specially concurring and dissenting opinions in
Johnson v. Fireman’s Fund Insurance Co.,
We favor arbitration as a means by whiсh parties may avoid the formalities, delay and expense of litigation by resolving their disputes in a tribunal of their choice.
Hawkins/Korshoj v. State Board of Regents,
In the present case, plaintiff had arbitration agreements with four of the eight defendants, but only one of them, AAA Mechaniсal, invoked arbitration. That defendant refused to agree to joint arbitration, insisting on its right to have its dispute with plaintiff determined independently. The arbitration issue was also raised in a motion to dismiss filed by defendants Barton-Douglas аnd INA.
Resisting arbitration in these circumstances, plaintiff points out that its claims against all defendants arise from the same construction project and involve common issues and evidence. In addition to the duplication of effort, delay and extra expense which would be inevitable if the claims had to be pursued in multiple proceedings, plaintiff is concerned about being whipsawed by defenses in individual proceedings based on shifting rеsponsibility to non-parties. Plaintiff is also worried about the possibility of inconsistent results. We believe these fears are justified.
In these circumstances, the policy favoring joinder of claims to permit them to be deсided in one forum at one time overrides the policy favoring arbitration. Indeed, allowing AAA Mechanical to arbitrate its dispute separately would increase rather than decrease the risk of complexity, delay and expense.
In Minnesota, where common-law arbitration agreements will ordinarily be enforced, the court refused to compel arbitration in circumstances analogous to those here.
See Prestressed Concrete, Inc. v. Adolfson & Peterson, Inc.,
The same view is expressed in
Ford Motor Co. Ltd. v. M/S Maria Gorthon,
This concept has been more fully developed in England where the enforceability of contracts to arbitrate future disputes has been recognized since passage of the Common Law Procedure Act of 1854, 17 & 18 Viet., c. 125. The English rule is that the trial court has discretion to deny arbitration if some of the parties to the action are outside the arbitration agreement аnd some are within, or if some of the issues are beyond the agreement, at least when the relationships and issues are closely intertwined.
See Rosenthal v. Berman,
The prospect of multiple рroceedings carrying a potential for inconsistent findings provides a basis for overriding the freedom to contract for arbitration. Taunton-Collins v. Chromie, [1964] 1 W.L.R. 633, 635-36 (C.A.); Halifax Overseas Freighters, Ltd. v. Rasno Export (“The Pine Hill”), [1958] 2 Lloyd’s List L.R. 146, 151-52 (Q.B.); see Rowe Brothers & Co. v. Crossley Brothers Ltd., 108 L.T.R.(n.s.) 11, 17 (C.A.1912). It is not sufficient to show merely that litigatiоn might be a speedier and less expensive means of resolving the controversy. Willesford v. Watson, L.R. 8 Ch. 473, 479-80 (Ch.App.1873), aff’g L.R. 14 Eq. 572, 577-78 (1871); Bulk Oil (Zug) A. G. v. Trans-Asiatic Oil Ltd. S. A., [1973] 1 Lloyd’s List L.R. 129, 136-39 (Q.B.). However, the necessary additional showing has clearly been made in the present case.
Multiple proceedings with a potential for inconsistent results are inevitable unless arbitration is stayed. The policies favoring arbitration and joinder would be subverted rather than served. Therefore we hold that the arbitration provision in plaintiff’s contract with AAA Mechanical cannot be enforced in these facts.
AAA Mechanical insists on pursuing arbitration despite plaintiff’s objection. The record shows that the American Arbitration Association has agreed tо be bound by an injunction against arbitration even though it is not a party to this action. In these circumstances, the trial court erred in dissolving the injunction. See Iowa R.Civ.P. 321(b).
Plaintiff’s appendix and brief do not contain cost certificates as required by Iowa R.App.P. 16(c). Expenses for printing those documents, subject to the limitation of $3.00 per page, shall not be taxed as costs until such certificates are filed.
REVERSED.