Cundiff v. Frazier Construction Co.

23 Va. Cir. 18, 1990 Va. Cir. LEXIS 418

• Court: Virginia Circuit Court
• Decided: September 18, 1990
• Status: Published

Opinion

By JUDGE FRANK I. RICHARDSON, JR.

There are four cases pending in this Court involving J. R. Cundiff, Blue Ridge Nursing Center of Martinsville and Henry County, and Frazier Construction Company. These parties will hereafter be referred to as Cundiff, Blue Ridge, and Frazier. Said cases are listed as follows:

(1) Blue Ridge Nursing Center of Martinsville and Henry County v. J. R. Cundiff, Jr., No. CH90004086.

(2) J. R. Cundiff, Jr. v. Frazier Construction Company and Blue Ridge Nursing Center of Martinsville and Henry County, No. CH90004106.

(3) J. R. Cundiff, Jr. v. Frazier Construction Company and Blue Ridge Nursing Center of Martinsville and Henry County, No. CH90004107.

(4) J. R. Cundiff, Jr. v. Blue Ridge Nursing Center of Martinsville and Henry County, No. CH90004108.

Blue Ridge and Frazier have moved to submit the contract disputes between the parties to arbitration, and Cundiff has opposed arbitration and wants to proceed with the mechanic lien suits. In arriving at a decision on the motions to submit said disputes to arbitration, the Court has considered the discussion between counsel and the Court at the pretrial conference; the telephone conference between counsel and the Court; the memorandums of law filed by counsel; the pleadings, exhibits, and motions filed in each of the subject cases; and the contracts entered into by the parties.

Cundiff has alleged that the defendants have waived their right to arbitration. The Court has reviewed the contracts between the parties and finds that Blue Ridge and Frazier entered into a standard A.I.A. owner and contractor’s contract which contains an arbitration clause. It is also found that Frazier and Cundiff entered into a standard A.I.A. contract between the contractor and subcontractor, which also contains an arbitration clause. There is no allegation that the contracts were not entered into voluntarily. Cundiff filed a mechanic’s lien and has now brought suit on the mechanic’s lien. Frazier and Blue Ridge have filed motions and answers to Cundiff’s suit, but they in no way waive their rights to arbitration under the contract. Therefore, this court finds that the defendants have not waived their rights to arbitration.

Cundiff further claims in his memorandum that arbitration cannot be deemed a limitation of any rights or remedies which the subcontractor may have under any federal or state mechanic’s lien law or under any applicable labor and material payment bond unless such rights or remedies are expressly waived by him. This Court finds that referring the contract disputes for arbitration and to stay further proceedings on the mechanic’s lien suit pending a decision in arbitration will not be a limitation of any rights or remedies that Cundiff has under his mechanic’s lien suit.

Cundiff further alleges in his memorandum that there are two suits which arose out of oral contracts and should not be submitted to arbitration. Article 13.1 of the contract between Cundiff and Frazier has the following language:

All claims, disputes and matters in question arising out of, or relating to, this subcontract, or the breach thereof shall be decided by arbitration ....

The Court finds that all of the above cases are somewhat interrelated. The conflicts arose out of the same construction project, and the decision in any of the cases could have an influence in the decision in one or all of the other cases. Therefore, the Court finds that the disputes arising out of the suits involving oral contracts are clearly relating to the subcontract between Cundiff and Frazier and therefore should be submitted to arbitration.

Upon the consideration of the Frazier and Blue Ridge motions to submit the contract disputes to arbitration, the Court orders and directs that all contract disputes existing between the parties be submitted to arbitration as is provided for in the contracts and further proceedings on the mechanic’s lien suits of Cundiff shall be stayed until said contract disputes between the parties have been decided by arbitration.