Dakota Wesleyan University v. HPG International, Inc.

1997 SD 30, 560 N.W.2d 921, 1997 S.D. LEXIS 32, 1997 WL 136213
CourtSouth Dakota Supreme Court
DecidedMarch 26, 1997
Docket19484, 19485
StatusPublished
Cited by18 cases

This text of 1997 SD 30 (Dakota Wesleyan University v. HPG International, Inc.) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dakota Wesleyan University v. HPG International, Inc., 1997 SD 30, 560 N.W.2d 921, 1997 S.D. LEXIS 32, 1997 WL 136213 (S.D. 1997).

Opinions

MILLER, Chief Justice.

[¶ 1.] Dakota Wesleyan University (DWU) commenced an action against HPG International, Inc. (HPG), a New York corporation, to recover damages for an alleged breach of warranty in connection with a roofing project on its campus. The trial court concluded that the dispute was subject to arbitration, pursuant to the written agreement of the parties. However, the trial court found the situs provision of the arbitration agreement [922]*922to be unreasonable and ordered that arbitration take place in South Dakota and apply New York law. HPG appeals the trial court’s ruling regarding situs of the arbitration. We dismiss the appeal.

FACTS

[¶ 2.] The facts surrounding the quality of or defects in the subject roof are immaterial to this appeal. Suffice it to say, the specifications of the roof project required bidders to provide a roof membrane with a ten-year renewable warranty of watertightness to cover both materials and labor required to repair leaks caused by structural movement. The roof membrane was provided by Dynam-it Nobel of America, Inc. (Dynamit) and warranted by Dynamit’s successor in interest, HPG.

[¶ 3.] The roof membrane warranty contained a provision for arbitration of disputes arising from the warranty agreements which provided:

Except as provided below, any controversy or claims arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, at the New York Regional Office, and judgment upon the award rendered by the Arbitrator(s) may be entered in any Court having jurisdiction thereof.

[¶ 4.] Shortly after completion of the project, DWU began to experience problems with roof leakage. These problems continued for a number of years and repairs to the roof failed to remedy the problem. Eventually, DWU replaced the roof membrane and repaired the water damage at its own expense. DWU brought suit against HPG alleging breach of warranty. HPG sought to enforce the mandatory arbitration clause in the warranty documents. The trial court compelled arbitration but concluded that the situs provision of the agreement was unreasonable. The trial court, therefore, ordered that the arbitration take place in South Dakota and apply New York law.

[¶ 5.] Because our jurisdiction in this matter is precluded by 9 USC § 16, which prohibits immediate appeals of interlocutory orders compelling arbitration, we dismiss the appeal.

DECISION

[¶ 6.] The Federal Arbitration Act (FAA) preempts state law and governs all written arbitration agreements in contracts involving interstate commerce. Allied-Bruce Terminix Cos., Inc. and Terminix Int’l Co., v. Dobson, 513 U.S. 265,-, 115 S.Ct. 834, 838, 130 L.Ed.2d 753, 763 (1995). As the contract between these parties clearly involves interstate commerce, we turn to the FAA for guidance in determining whether the circuit court’s order to compel arbitration is appealable.

[¶ 7.] The FAA, codified as amended at 9 USC §§ 1-16, evidences a “ ‘liberal federal policy favoring arbitration agreements.’ ” Gammaro v. Thorp Consumer Discount Co., 15 F.3d 93, 95 (8thCir.1994) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25, 111 S.Ct. 1647, 1651, 114 L.Ed.2d 26, 36 (1991)). This pro-arbitration policy “endeavor[s] to promote appeals from orders barring arbitration and limit appeals from orders directing arbitration.” Filanto, S.P.A v. Chilewich Int’l Corp., 984 F.2d 58, 60 (2dCir.1993). Appeals from orders concerning arbitration agreements are limited and specifically enumerated at 9 USC § 16:

(a) An appeal may be taken from—
(1) an order—
(A) refusing a stay of any action under section 3 of this title,
(B) denying a petition under section 4 of this title to order arbitration to proceed,
(C) denying an application under section 206 of this title to compel arbitration,
(D) confirming or denying confirmation of an award or partial award, or
(E) modifying, correcting, or vacating an award;
[923]*923(2) an interlocutory order granting, continuing, or modifying an injunction against an arbitration that is subject to this title; or
(3) a final decision with respect to an arbitration that is subject to this title.
(b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order—
(1) granting a stay of any action under section 3 of this title;
(2) directing arbitration to proceed under section 4 of this title;
(3) compelling arbitration under section 206 of this title; or
(4) refusing to enjoin an arbitration that is subject to this title.

[¶ 8.] This pro-arbitration policy has not been fully implemented, however. While the statute provides that “an appeal may not be taken from an interlocutory order ... directing arbitration to proeeed[,]” 9 USC § 16(b)(2), the statute also provides that “[a]n appeal may be taken from ... a final decision with respect to an arbitration[.]” 9 USC § 16(a)(3). These provisions build upon the previously recognized distinction between “so-called ‘independent’ proceedings and so-called ‘embedded’ proceedings.” Gammaro, 15 F.3d at 95 (quoting Filanto, 984 F.2d at 60).

[¶ 9.] A suit is an “independent” proceeding when the only issue before the court is whether the dispute is subject to arbitration and no other relief is sought by the parties. McDermott Int’l, Inc., v. Underwriters at Lloyd’s, 981 F.2d 744, 747 (5thCir.), cert. denied, 508 U.S. 951, 113 S.Ct. 2442, 124 L.Ed.2d 660 (1993); Filanto, 984 F.2d at 60; Stedor Enters. Ltd. v. Armtex, Inc., 947 F.2d 727, 731 (4thCir.1991); Matter of Chung and President Enters. Corp., 943 F.2d 225, 227-28 (2dCir.1991). If the only issue is whether arbitration is required, the proceeding is independent and the party opposing arbitration may immediately appeal the order compelling arbitration. Filanto, 984 F.2d at 60.

[¶ 10.] “Embedded” proceedings are proceedings in which a party seeks “ ‘some relief other than an order requiring or prohibiting arbitration (typically some relief concerning the merits of the allegedly arbitrable dispute).’ ” Gammaro, 15 F.3d at 95 (quoting Filanto, 984 F.2d at 60).

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Dakota Wesleyan University v. HPG International, Inc.
1997 SD 30 (South Dakota Supreme Court, 1997)

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Bluebook (online)
1997 SD 30, 560 N.W.2d 921, 1997 S.D. LEXIS 32, 1997 WL 136213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dakota-wesleyan-university-v-hpg-international-inc-sd-1997.