for the Court:
¶ 1. H. Gordon Myrick, Inc. (Myrick)
¶ 2. HCCL contends that all of its claims are related to aesthetic effect and, thus, not subject to arbitration. HCCL also challenges the validity of the arbitration agreement, which claims are subject to arbitration, and the trial court’s ruling on several of its motions. Myrick raises three claims on cross-appeal: whether HCCL waived its right to litigate aesthetic-effect claims, whether the trial court erred by accepting HCCL’s untimely aesthetic-effect-claim submission, and whether the trial court erred by not ordering all claims to arbitration.
¶ 3. We find that the parties’ claims are without merit. But it is difficult to determine why the trial court ordered certain
FACTS AND PROCEDURAL HISTORY
¶ 4. HCCL is an owner and developer of commercial buildings, and Myrick is a contractor. On March 26, 2008, the parties contracted for Myrick to build HCCL an executive — office building — the Cain Office Building — in Gulfport, Mississippi. The parties used a standard construction contract created by the American Institute of Architects (AIA) and amended the document to suit their needs. The contract contained provisions regarding mediation and arbitration of certain disputes.
¶ 5. Construction commenced in April 2008, and, by 2009, HCCL was unhappy with Myrick’s choice of project manager and Myrick’s failure to complete the project on time. On May 1, 2009, Myrick declared the building substantially complete. On May 4, 2009, HCCL, unsatisfied with the building’s appearance, submitted punch-list items for Myrick to correct. But, four days later, HCCL terminated Myrick and retained a new contractor to finish the project.
¶ 6. Thereafter, Myrick filed a construction lien against HCCL. In a letter to HCCL, Myrick agreed to mediate claims regarding the punch-list items, but demanded HCCL pay its outstanding balance. HCCL refused to remit payment, requested Myrick to cancel the lien, and expressed its desire to resolve the dispute through mediation. Unsatisfied with HCCL’s response, Myrick filed concurrently a mediation request and a demand for arbitration with the American Arbitration Association on June 16, 2009. And, before mediation occurred, Myrick filed a motion to compel arbitration in the Harrison County Circuit Court.
¶ 7. Mediation occurred in August 2009 and was unsuccessful. On August 31, 2009, HCCL moved to dismiss Myrick’s previously filed motion to compel arbitration, arguing that Myrick had filed its motion prematurely and thus had waived its right to arbitrate. Then, on September 1, 2009, HCCL filed a separate breach-of-contract action against Myrick in the Harrison County Circuit Court and alleged-the following claims/relief: removal of wrongful construction lien, slander of title, removal of cloud on title, abuse of legal process, breach of contract, negligence, fraud and intentional misrepresentation, negligent misrepresentation, breach of duty of good faith and fair dealing, accounting, and an injunction regarding arbitration. Myrick moved to dismiss HCCL’s complaint and to compel arbitration.
¶ 8. On January 8, 2010, the trial court entered an order which determined that the parties’ contract included a valid, enforceable arbitration agreement. The trial court reserved its ruling on which claims were subject to arbitration, stating it would determine the issue later in a summary proceeding. The trial court instructed the parties to submit a memo detailing which claims they thought were related to aesthetic effect and, thus, not subject to arbitration.
¶ 9. Following that ruling, HCCL filed a direct appeal and an interlocutory appeal to this Court. Myrick filed a motion to dismiss HCCL’s appeals, arguing that the trial court’s order failed to dispose of all issues. On March 4, 2010, this Court dismissed HCCL’s appeals and remanded the case to the trial court for further proceedings.
¶ 10. While HCCL’s appeals were pending, Myrick filed its aesthetic-claims submission — the affidavit of Lee R. Con-nell, a registered architect — on February 4, 2010.
¶ 11. Following oral argument, the trial court ruled that some of HCCL’s punch-list items were aesthetic and, thus, would be submitted to a jury. The trial court’s order stated that items not listed were subject to arbitration. Aggrieved, HCCL appeals, and Myrick cross-appeals the trial court’s order.
ANALYSIS
¶ 12. A grant or denial of a motion to compel arbitration is reviewed de novo. Cmty. Bank of Miss. v. Stuckey,
¶ 13. The Court does not review the merits of the underlying claim. Smith Barney,
¶ 14. The trial court found that the arbitration agreement was valid and enforceable. HCCL argues that the arbitration agreement is not valid because it fails to include an express waiver of its right to a jury trial. HCCL also contends that the contract is ambiguous, providing for both arbitration and the institution of legal or equitable proceedings. Conversely, Myr-ick maintains that the arbitration agreement is unambiguous, binding, and enforceable.
A. Ambiguity
¶ 15. “The mere fact that the parties disagree about the meaning of a provision of a contract does not make the contract ambiguous as a matter of law.” Delta Pride Catfish, Inc. v. Home Ins. Co.,
¶ 16. The parties’ contract provides for the resolution of claims and disputes. First, the parties must mediate:
4.5.1 Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived ... shall, be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party.
Then, the parties must arbitrate:
4.6.1 Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived ... shall, after decision by the Owner5 or 30 days after submission of the Claim to the Owner, be subject to arbitration. Prior to arbitration, the parties shall endeavor to resolve disputes by mediation in accordance with the provisions of Paragraph 4.5.
4.6.2 Claims not resolved by mediation shall be decided by arbitration....
¶ 17. HCCL contends that the language in section 4.5.1 — that “mediation [is] a condition precedent to arbitration or the institution of legal or equitable proceedings”— does not reflect a clear intent to arbitrate. HCCL claims that the disjunctive “or” allows it to choose whether to arbitrate or to litigate its claims, therein creating ambiguity. Conversely, Myriek states that a review of the contract as a whole shows no ambiguity. We agree.
B. Right to a Jury Trial
¶ 19. Next, HCCL complains that the arbitration agreement failed to include an express waiver of its right to a jury trial; thus, it is invalid. Myrick counters that there is no such requirement.
¶20. Mississippi Code Sections 11 — 15— 101 to 11-15-148 address arbitration agreements in construction contracts. The statutes provide, in pertinent part, that:
Two (2) or more parties referred to in Section 11-15-101 may agree in writing to submit to arbitration any controversy existing between them at the time of the agreement, or they may include in a written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract or the failure or refusal to perform the whole or any part thereof. Such agreement or provision shall be valid, enforceable and irrevocable without regard to the justiciable character of the controversy.
Miss.Code Ann. § 11-15-103 (Rev.2003). The arbitration provision in question provides that “[a]ny Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived ... shall ... be subject to arbitration.” HCCL claims that the provision must provide an express waiver of a jury trial, but caselaw does not support its position.
¶ 21. HCCL cites two cases in support of its position, but its reliance on these cases is misplaced. In B.C. Rogers Poultry, Inc. v. Wedgeworth, the Court addressed whether an arbitration agreement applied retroactively to disputes arising from previous contracts which did not contain arbitration provisions. B.C. Rogers Poultry, Inc. v. Wedgeworth,
¶ 22. In Pre-Paid Legal Services, the Court decided whether language contained in a pre-paid, legal-services plan constituted a binding agreement to arbitrate. Prepaid Legal Servs., Inc. v. Battle,
K. Settlement of Disputes: In the event of a dispute, the parties will agree on an impartial attorney who will decide such dispute and that decision will be binding on all parties to such dispute.
Id. at 81 (¶ 3). Also, the document did not require the plaintiffs’ signatures. Id. The Court found that this language was insufficient to create a binding arbitration agreement, reasoning:
[H]ere there was no notice, no discussion, and no negotiation of the arbitration agreement. Further, based upon the language in this clause, we do not find that an average citizen would realize that he or she is giving up his or her right to a trial by jury under the broad, general language contained in the prepaid legal expense agreement.
Id. at 84 (¶ 15). Further, the Court found that the agreement was ambiguous because it also contemplated litigation. Id. at 84 (¶ 16). Thus, the Court affirmed partial summary judgment in favor of the plaintiffs and remanded to the trial court for further proceedings. Id. at 84 (¶¶ 18-19).
¶ 23. Unlike the provision in Pre-Paid Legal Services, the arbitration provision in HCCL’s and Myrick’s contract is clear and unambiguous. In Harry Baker Smith Architects II, PLLC v. Sea Breeze I, LLC, those parties utilized a similar arbitration provision, and the Court of Appeals found that the provision articulated clearly the parties’ agreement to arbitrate.
¶ 24. No caselaw suggests that, to be valid, an arbitration agreement must include an express statement which waives the right to a jury trial. In contrast, this Court has stated that:
[T]he Constitution does not “confer the right to a trial, but only .the right to have a jury hear the case once it is determined that the litigation should proceed before a court. If the claims are properly before an arbitral forum pursuant to an arbitration agreement, the jury trial right vanishes.”
McKenzie Check Advance of Miss., LLC v. Hardy,
II. Motion to Dismiss
¶ 25. The Court reviews a motion to dismiss de novo. Loggers, LLC v. 1 Up Technologies, LLC,
¶ 26. On June 16, 2009, Myrick simultaneously filed a request for mediation and a demand for arbitration. By letter dated July 1, 2009, HCCL opined that its claims were not subject to arbitration. Based on other correspondences between the parties, the parties were clearly at odds and reluctant to comply with the arbitration agreement. On July 17, 2009, prior to mediation, Myrick filed its motion to compel arbitration.
¶ 27. HCCL contends that the trial court should have dismissed Myrick’s
¶ 28. The record shows that both parties were reluctant to comply with their mediation/arbitration agreement. Section 11-15-105 gives parties permission to file a motion to compel arbitration:
Amy party to an agreement or provision for arbitration subject to sections 11 — 15— 101 through 11-15-143 claiming the neglect or refusal of another party thereto to comply therewith may make application to the court as described in sections 11-15-133 and 11-15-135 for an order directing the parties to proceed with arbitration in accordance with the terms of such agreement or provision. If the court finds that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine such issue and shall, consistent with such determination, grant or deny the application.
Miss.Code Ann. § 11-15-105(1) (Rev.2004). Based on Section 11-15-105(1), the motion to compel arbitration was proper. The trial court properly denied HCCL’s motion to dismiss; thus, we find this issue is without merit.
III. Waiver
A. HCCL: Right to Arbitrate
¶ 29. HCCL also maintains that Myrick waived its right to arbitrate by filing its complaint prior to mediation and arbitration. A party may waive the right to compel arbitration where it actively participates in litigation or takes other actions inconsistent with the right to compel arbitration which substantially invoke the judicial process to the detriment or prejudice of the other party. In re Tyco Int'l (US) Inc.,
¶ 30. “Parties seeking to enforce arbitration are to file a [motion to compel arbitration] immediately upon discovery that the controversy or suit is subject to an arbitration agreement.” Century 21 Maselle and Assocs., Inc. v. Smith,
¶ 31. As previously stated, Section 11-15-105(1) specifically allows a party to file a motion to compel arbitration if the opposing party neglects or refuses to comply. Miss.Code Ann. § 11-15-105(1) (Rev.2004). HCCL argues that Myrick’s motion to compel arbitration went beyond a simple demand for arbitration. But the record does not support its assertion. The trial court properly rejected HCCL’s waiver argument; thus, we find that this issue is without merit.
B. Myrick: Right to Litigate
¶ 32. On cross-appeal, Myrick claims that HCCL waived its right to litigate its aesthetic-effect claims by including
¶ 38. Myrick fails to cite any authority in support of its position. It is the appellant’s duty to cite authority in support of its position, and the Court considers unsupported assignments of error to be abandoned. Jones v. Howell,
IV. Motions to Strike
¶ 34. Both parties moved to strike the other’s submissions. Myrick moved to strike HCCL’s aesthetic-effect submission because it was late. And HCCL moved to strike Connell’s expert affidavit as improper expert testimony.
A. Aesthetic-Effect Submission
¶ 35. Myrick argues that the trial court erred by denying its motion to strike HCCL’s aesthetic-effect submission for being late. Conversely, HCCL contends that its filing of an interlocutory appeal and direct appeal to this Court was good cause for its late submission, and the trial court properly denied Myrick’s motion to strike. In response, Myrick urges that HCCL should have filed a stay pending appeal and/or requested an extension of time.
¶ 36. On January 8, 2010, the trial court entered an order denying HCCL’s motion for continuance and motion to dismiss but granting Myrick’s motion to compel arbitration. The trial court detailed a timeline for aesthetic-effect-claim submissions. It ordered HCCL to submit its list by January 29, 2010, and ordered Myrick to file its response by February 12, 2010. HCCL filed an interlocutory appeal and direct appeal from this order on January 27, 2010. The Court dismissed HCCL’s appeals on March 9, 2010. Later that month, HCCL filed its aesthetic-effect submission.
¶ 37. Myrick relies on Bowie v. Montfort Jones Memorial Hospital,
Our trial judges are afforded considerable discretion in managing the pretrial discoverg process in their courts, including the entry of scheduling orders setting out various deadlines to assure orderly pre-trial preparation resulting in timely disposition of the cases. Our trial judges also have a right to expect compliance with their orders, and when parties and/or attorneys fail to adhere to the provisions of these orders, they should be prepared to do so at their own peril.
Bowie,
B. Expert Affidavit
¶ 38. We review the trial court’s admission or exclusion of evidence for an abuse of discretion. Smith ex rel. Smith v. Clement,
¶ 39. The trial court found that a valid arbitration agreement existed between the parties and reserved its ruling on which claims were subject to arbitration. The trial court ordered the parties to submit a memo detailing which claims they thought were related to aesthetic effect. The order provided that “[t]he Court finds expert testimony is not necessary for purposes of this hearing. Accordingly, no discovery will be conducted prior to the hearing.” (Emphasis added.)
¶40. Myrick submitted Connell’s affidavit as its aesthetic-effect submission. Connell opined that, based on his experience in the construction industry, none of HCCL’s claims was related to aesthetic effect and, thus, all were subject to arbitration. Later, HCCL submitted its aesthetic-effect claims along with affidavits. In one affidavit, Lamier stated which claims she thought were related to aesthetic effect.
¶ 41. Arbitration agreements are contractual in nature; thus, parties will not be required to arbitrate matters which they did not consent to arbitrate. Scruggs v. Wyatt,
¶42. The trial court did not preclude expert opinions, but it deemed that expert opinions were not necessary. At a December 10, 2009, hearing, Myrick offered to call Connell. The trial court responded that it did not intend to hear experts that day because HCCL should have an opportunity to prepare for that testimony and call a rebuttal expert. The trial court gave HCCL an opportunity to respond, and HCCL’s counsel contemplated retaining its own expert. The next hearing was held on September 30, 2010, and, by that time, HCCL had not filed any expert affidavit. The trial court did not preclude HCCL from challenging Connell’s affidavit. Contrary to HCCL’s position, the trial court did allow it an opportunity to rebut Con-nell’s affidavit.
¶ 43. “[Wjhere error involves the admission or exclusion of evidence, this Court ‘will not reverse unless the error adversely affects a substantial right of a party.’ ” Haggerty v. Foster,
That’s the affidavit of — ...—Lee Con-nell that basically just says all of the plaintiff’s claims are structural?.... Non-aesthetic? ... All right. I don’t know how that assists the Court, but all right.
The trial court neither mentions the substance of Connell’s affidavit in its order nor follows Connell’s opinion. Based on the foregoing, we find that error, if any, is harmless.
V. Scope of Arbitration
¶ 44. After the arbitration agreement is determined to be valid, the Court must determine whether the parties’
¶ 45. Under the agreement, “[a]ny Claim arising out of or related to the Contract, except Claims relating to aesthetic effect ... shall ... be subject to arbitration.” In its order, the trial court designated which claims were aesthetic, or not subject to arbitration. The trial court further explained that “[a]ll other items in dispute and not identified above as aesthetic are subject to binding arbitration....” (Emphasis added.) HCCL maintains that all of its claims are related to aesthetic effect, and the trial court erred by ordering arbitration. On cross-appeal, Myrick complains that the trial court should have ordered arbitration on all claims.
¶ 46. “Aesthetic effect” is not a legal term. It is a term often used in the construction industry. And “aesthetic effect,” as used in construction contracts, should be defined on a case-by-case basis. Other jurisdictions have explored the issue and, for example only, we discuss those cases below.
¶ 47. The Arkansas Supreme Court has defined “aesthetic” as “pertaining to a sense of the beautiful or to the science of aesthetics.” May Constr. Co., Inc. v. Benton Sch. Dist.,
If the appearance of the concrete floors was not “totally unacceptable” as the plaintiff contends, then there would be no claim. Granted, the plaintiffs complaint refers to May Construction’s negligently supplying a defective product and breach of warranties. However, if the aesthetic effect of the floors was not unacceptable, the product would not be defective and the warranties would not be breached.
Id. at 523. The court in Flandreau Public School District v. G.A. Johnson Construction, Inc.,
¶ 48. In Flandreau, the school district alleged that the contractor had used substandard materials and exhibited poor workmanship when it constructed the school’s interior walls. Flandreau,
[A] review of Flandreau’s complaint and the undisputed facts reveal' that Johnson’s issues of “breach of contract” and “failure to comply with industry standards” are nothing more than the underlying reasons why Flandreau has an aesthetic claim. Paragraph nine of the complaint reflects that the claim relates to the “finish of the interior.” Furthermore, paragraph seventeen only-sought damages for the “appearance of plaintiffs building.” Therefore, this claim was plainly one for the aesthetic effect of Johnson’s work.
Id. at 438. Because Flandreau’s claims related to aesthetic effect, the court found that the claims were not arbitrable. Id. at 438-39.
¶ 49. Because, here, some claims relate to aesthetics and some do not, HCCL’s case is not as easy to determine as May and Flandreau. HCCL raised sixteen counts in its complaint. For the sake of clarity, we address each claim one-by-one.
A. HCCL’s Complaint
Count I—Removal of Wrongful Construction Lien
¶ 50. Because HCCL allegedly failed to pay Myrick, Myrick filed a construction lien against HCCL. The trial court did not mention this claim in its order and thus, by effect, ordered this claim to arbitration. HCCL argues that its refusal to pay is based on the building’s unsatisfactory appearance, so the claims are related to aesthetic effect and not subject to arbitration. We disagree.
¶ 51. The claim stems directly from Myrick’s construction lien filed for nonpayment. We decline to stretch the narrow, aesthetic-effect exception to include this claim. The trial court properly ordered the claim to arbitration.
Count II—Slander of Title and Motion for Injunctive Relief
Count III—Removal of Cloud on Title
Count IV—Abuse of Legal Process in Filing Lien
¶ 52. In count two, HCCL claimed “[t]he willful and malicious filing of the Notice of Construction Lien on May 27, 2009, constitutes a slander of title against HCCL.” HCCL makes similar claims in counts three and four. Once again, these claims relate directly to Myrick’s construction lien. Thus, the trial court properly ordered these claims to arbitration.
Count V—Breach of Contract
¶ 53. HCCL lodges various complaints in its breach-of-contract claim. Given the general definition of the term, some claims arguably are related to aesthetic effect—performing the work in a sloppy, defective, and/or unworkmanlike manner and failing to submit a comprehensive list of items to be completed. But several other complaints are not related to aesth1 etic effect—wrongfully filing a construction lien, making unauthorized changes to the work, failing to complete the work in a timely manner, submitting inflated and/or incorrect payment applications, failing to use Mike Penny as project manager, and failing to replace Scott Oliver with H. Gordon Myrick Jr. as project manager. The trial court properly ordered the latter claims to arbitration.
Count VI—Negligence
¶ 54. Like the breach-of-contract claim, some of HCCL’s negligence claims arguably are related to aesthetic effect: negligent construction and unworkmanlike construction. Others are not: failure to complete the project in a timely manner and within budget and deviating from the bid documents.
Count VII & VIII—Fraud and Intentional Misrepresentation
Count IX—Negligent Misrepresentation
¶ 55. In these counts, HCCL alleges that Myrick filed incorrect payment
Count X — Bad-Faith Breach of Agreement and Breach of Duty of Good Faith and Fair Dealing
¶ 56. HCCL claims that Myrick intentionally misrepresented the payments owed to it, maliciously ceased work to force HCCL to pay, and improperly filed the hen against the building. These claims are not related to aesthetic effect and thus are subject to arbitration.
Count XI — Accounting
¶ 57. To prove whether Myrick submitted false payment applications, HCCL requests an accounting from Myr-ick. This claim is not related to aesthetic effect and thus is subject to arbitration.
Count XII — Injunction to Prevent Fur- ■ ther Slander of Title
¶ 58. As previously stated, the slander-of-title issue relates directly to Myrick’s construction lien. This claim is not related to aesthetic effect and thus is subject to arbitration.
Count XIII — Injunction Regarding Arbitration
¶ 59. In this count, HCCL alleges that the arbitration provision is invalid and unenforceable. As previously discussed in Section I of this memo, the arbitration agreement is valid and enforceable. This issue is without merit.
Count XIV — Damages
¶ 60. HCCL requests damages for each of its previous counts. All requests for damages, except those related to aesthetic effect, are subject to arbitration. We specifically address HCCL’s claim for liquidated damages.
¶ 61. The contract contained a liquidated-damages clause. HCCL claims the issue relates to aesthetic effect and thus is not subject to arbitration. The liquidated-damages clause, which was added by the parties, specifically provides:
If substantial completion is not achieved by 210 days after date permit is issued, liquidated damages in the amount of $1,000 per day shall be payable by contractor to owner until such date as substantial completion is achieved ... If substantial completion is achieved before 210 calender days after permit is issued, an early completion bonus of $1,000 per day shall be paid by Owner to Contractor.
Because this claim relates to timeliness (not aesthetic .issues), the trial court properly ordered arbitration on the liquidated-damages claim. See Roosevelt Univ. v. Mayfair Constr. Co., Inc.,
B. Punch-List Items
¶ 62. As previously mentioned, HCCL submitted to the trial court a list of claims it deemed were related to aesthetic effect and thus not subject to arbitration. HCCL included the punch-list items it submitted to Myrick prior to the termination. In its order, the trial court picked which punch-list items it believed to be aesthetic and thus were not subject to arbitration.
¶ 63. HCCL listed each aesthetic claim by its location in or around the building. For example, HCCL listed the following issues for the “south side” of the building:
South Side
Overhead light needs paint
Left side of door no wall cover & not square
Above door needs work
Outside cove stucco is marked up
Where stucco meets wood/gutter very rough on all south side doors
In its order, the trial court accepted the following claims as aesthetic and thus not subject to arbitration:
South Side
Overhead light needs paint
Outside cove stucco is marked up
Where stucco meets wood/gutter very rough on all south side doors
Thus, the remaining two claims — “|l]eft side of door no wall cover & not square” and “[ajbove door needs work” — were subject to arbitration. The trial court’s order contains many other examples like this.
¶ 64. As previously mentioned, the Court notes one ambiguity not raised by the parties — the definition of “aesthetic effect.”
¶ 65. The Court has stated that
Whenever the terms of a contract are susceptible of more than one interpretation, or an ambiguity arises, or the intent and object of the contract cannot be ascertained from the language employed, parol evidence may be introduced to show what was in the minds of the parties at the time of making the contract.... The ambiguity may arise from words which are uncertain when applied to the subject matter of the contract.
IP Timberlands Operating Co., Ltd. v. Denmiss Corp.,
¶ 66. Because the contract does not define “aesthetic” and there was no evidence of a prevailing industry standard or commonly accepted trade usage of the term, the trial court had only the applicable dictionary definition.
¶ 67. As a preliminary fact-finder, the trial court must determine which claims are arbitrable and which claims are subject to litigation. Greater Canton Ford Mercury, Inc. v. Ables,
¶ 68. The Court cannot determine what the trial court relied upon in making its decision on the punch-list items. Thus, it is impossible for this Court to determine whether the trial court erred in its judgment. As previously discussed, the trial court must determine what “aesthetic effect” encompasses.
¶ 69. Therefore, we remand this case to the trial court on the punch-list items alone and instruct the trial court to provide reasoning for its aesthetic and no-naesthetic designation of those claims.
CONCLUSION
HCCL’s Claims on Appeal
¶ 70. The arbitration agreement is valid, unambiguous, binding and enforceable, and the contract expressed a clear agreement to arbitrate. The trial court did not err by denying HCCL’s motion to dismiss Myrick’s motion to compel arbitration. By filing a motion to compel arbitration, Myr-ick did not waive its right to arbitrate. Error, if any, the trial court committed by accepting Connell’s affidavit is harmless. And HCCL’s argument that all of its claims are aesthetic and thus not subject to arbitration is without merit.
Myrick’s Claims on Cross-Appeal
¶ 71. By submitting its aesthetic claims to mediation, HCCL did not waive its right to litigate those claims following unsuccessful mediation. The trial court did not err by accepting HCCL’s tardy aesthetic-effects submission. And Myrick’s argument that all of HCCL’s claims should be subject to arbitration is without merit. Remand
¶ 72. Because it is difficult to determine why the trial court ordered certain punch-list items to arbitration and not others, we remand to the trial court to more clearly delineate which of the punch-list items are subject to arbitration and on what basis.
¶ 73. ON DIRECT APPEAL: AFFIRMED IN PART AND REMANDED. ON CROSS-APPEAL: AFFIRMED IN PART AND REMANDED.
Notes
. Throughout the record, the parties refer to H. Gordon Myrick as "HGM.” We refer to the company as "Myrick” to prevent confusion.
. In the construction industry, a "punch list” is completed by the owner and given to the builder when the project is near completion. The punch list designates items which must be completed or repaired to satisfy the terms of the construction contract.
. According to the order, HCCL's submission was due January 29, 2010, and Myrick's submission was due February 12, 2010.
. Myrick also filed a second affidavit by Michael Hall Penny, Myrick’s vice-president. Penny stated that HCCL’s punch-list items were not aesthetic claims. Prior to the hearing, Myrick filed a notice to call Connell as an expert. HCCL opposed the notice. Myrick filed its expert affidavit with the trial court. The trial court denied HCCL’s motion after the hearing.
. Throughout the contract, Lamier, on behalf of HCCL, replaces the term “Architect” with the term “Owner.”
. The arbitration provision provided that: "Claims, disputes, and other matters in question between the parties that are not resolved by mediation shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association.” Harry Baker Smith Architects,
. Myrick also claims that HCCL’s aesthetic claims are not aesthetic at all, but regard alleged defects in construction and paving. Myrick further contends that these claims are subject to arbitration.
. For instance, HCCL alleges that Myrick deviated from the bid regarding heating and air conditioning units.
. For instance, HCCL listed a complaint as "handles missing on many windows." Without a handle, it may be difficult to open and close a window — an issue of functionality. But also, the missing handle could not be pleasing to the eye. So, is this an aesthetic claim? HCCL’s punch list contains many other examples like this. Thus, on remand, it would be helpful for the trial court to determine whether functional issues are covered by the aesthetic-effect exception,
. Aesthetic is defined as (1) "relating to the philosophy or theories of aesthetics,” (2) "of or concerning the appreciation of beauty or good taste: the aesthetic faculties,” (3) "characterized be a heightened sensitivity to beauty," (4) "artistic,” and (5) "conforming to accepted notions of good taste.” The American Heritage Dictionary of the English Language 28 (3d ed.1992).
. See supra note 10.