Hurley v. FoxHurley v. Fox
Mrs. John E. HURLEY
v.
Barry FOX, Individually and d/b/a Barry Fox & Associates Architects, Ltd.
Court of Appeal of Louisiana, Fourth Circuit.
Ralph L. Kaskell, Jr., Bobby M. Harges, Deutsch, Kerrigan & Stiles, New Orleans, for appellant.
A.R. Christovich, Jr., Christovich & Kearney, New Orleans, for appellee.
Before CIACCIO and LOBRANO, JJ., and HERBERT A. CADE, J. Pro Tem.
CIACCIO, Judge.
Defendant appeals the denial of his motion to confirm an arbitration award.
We hold, as we have held before, that
Although it appears that a contract existed between the parties, what must be determined is whether the document containing the written agreement to arbitrate represents the terms to which the parties agreed and by which the parties obligated themselves to perform. For if the parties consented to the terms of the document, particularly the agreement to arbitrate, then that written agreement to arbitrate is valid, irrevocable, and enforceable, except upon the grounds which exist at law or in equity for the revocation of contracts.
*468 Plaintiff sought the services of defendant, an architect, in the construction of a residence. Defendant made multiple drawings including a final drawing of the plans and specifications of the house plaintiff wanted built. At some time an American Institute of Architects, Standard Form of Agreement Between Owner and Architect was filled out and signed by defendant. Defendant sent copies of the signed form to plaintiff and her attorney.
The project progressed. With defendant serving as architect, plaintiff's house was built. Disputes arose, however, between plaintiff and her architect over matters of construction and design. Ostensibly under the terms of their agreement, plaintiff, through counsel, informed defendant that she was prepared to submit the disputed matters to binding arbitration. Because plaintiff was withholding from defendant final payment on the project, defendant sought resolution by arbitration, filing his claim for final payment. Plaintiff filed a counter-claim for damages arising from those matters of construction and design with which she was dissatisfied.
Both parties began participating fully in the arbitration process: they filed claims and counter-claims; considered, selected or rejected, suggested arbitrators; agreed upon an arbitrator; considered, accepted or rejected, and chose a location for the hearing; agreed upon a date for the hearing. Shortly before the hearing, however, counsel for plaintiff decided that because plaintiff had not signed the "contract", she was not bound to participate in the arbitration hearings. Plaintiff notified defendant and the arbitration association that she would not participate in the hearing and that the arbitration proceedings were at an end. Later she agreed to participate if the decision of the arbitrator would not be binding. Defendant maintained that plaintiff was obligated to submit matters of controversy to binding arbitration.
Plaintiff filed suit in district court, but did not move the court to stay the arbitration proceedings. Defendant moved the district court to stay its proceedings pending completion of the arbitration proceedings.
The arbitration hearing was conducted without plaintiff's participation. Defendant presented his case including both testimonial and documentary evidence. The arbitrator rendered an award in favor of defendant for the final payment amount which defendant complained that plaintiff was withholding.
Defendant moved the district court to confirm the arbitrator's award.
We note that under the Louisiana Arbitration Law, if there is a valid agreement to arbitrate,
The essence of the parties' contract was the design and construction of a house a contract for which the law prescribes no certain formality. The offer and acceptance which formed the contract, therefore, may have been made orally, in writing, or by action or inaction which under the circumstances is clearly indicative of consent. Unless otherwise specified in the offer, there need not be conformity between the manner in which the offer is made and the manner in which the acceptance is made. La.C.C. Art. 1927 (as enacted in 1984 in the revision of the Louisiana Civil Code, Book III, Titles III and IV, and derived from *469 former La.C.C. Arts. 1797, 1798, 1812, 1816 and 1817). Absent a signature or a signing of an agreement, the effect or validity of the agreement may be shown by the actions and conduct of the parties. Cook v. AAA Worldwide Travel Agency, supra,
It is necessary, therefore, to distinguish between the requirement that an agreement be in writing and the requirement that an agreement be signed. An agreement may be written and the consent thereto may be made orally or by the action or inaction of the parties, thus no signing of the writing is required. If the law requires signing, then at least some part (if not all) of the agreement must be written so that the parties have something to sign.
A writing requirement does not necessarily imply a signing requirement. Signing is an additional requirement beyond writing. When the law requires both, it expressly states both requirements: under
Accordingly, we set aside the judgment of the district court. We remand this matter for a hearing to determine whether the written "contract" signed by defendant expresses the terms of the agreement, if any, which existed between the parties. The court should also determine whether that agreement includes an arbitration clause which satisfies the provisions of
JUDGMENT SET ASIDE; CASE REMANDED.