Dilsaver v. Roger's Foundation Repair Co.

866 So. 2d 551, 2002 Ala. Civ. App. LEXIS 865, 2002 WL 31888168
CourtCourt of Civil Appeals of Alabama
DecidedDecember 30, 2002
Docket2010391
StatusPublished

This text of 866 So. 2d 551 (Dilsaver v. Roger's Foundation Repair Co.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dilsaver v. Roger's Foundation Repair Co., 866 So. 2d 551, 2002 Ala. Civ. App. LEXIS 865, 2002 WL 31888168 (Ala. Ct. App. 2002).

Opinion

MURDOCK, Judge.

Larry and Robin Dilsaver filed a four-count complaint against Roger’s Foundation Repair Co., Inc., an Alabama corporation with it principal place of business in Daphne, Alabama, and Roger Hendren, individually (Roger’s Foundation Repair and Hendren being hereinafter referred to collectively as “Roger’s”), alleging breach of contract, negligence, misrepresentation, and suppression of material facts. Roger’s filed a motion to compel arbitration and to stay the proceedings. With its motion, Roger’s submitted a copy of a contract whereunder Roger’s was to perform foundation-repair work on the Dilsavers’ home [553]*553located in Baldwin County. The contract stated that Roger’s was to install adjustable concrete foundation piers:

“Dig approximately 9 to 10 piers holes mark graft 4 ft. by 4 ft. Dig under 271 inch under the slab, put rebar with 3000 psi concrete jacks up, with approximately 10 piers pads, with steel shims, point crack where needed, wash down behind where needed, that includes all material labor.”

The contract was signed by Robin Dilsaver and Roger Hendren and included the following arbitration clause:

“ARBITRATION: It is acknowledged by Owner and Contractor that the work performed pursuant to this Contract involves or affects interstate commerce. Accordingly, Owner and Contractor mutually agree to any and all disputes arising with regard to work performed pursuant to this Contract, including but not limited to workmanship, performance, quality of work performed, compensation of Contractor, for the work contemplated by this Agreement, compensation of Contractor for extra work performed in addition to work contemplated by this Agreement, and any and all other disputes arising between Owner and Contractor of any kind or nature whatsoever in any way arising from the performance of any work contemplated by this Agreement shall be resolved by binding arbitration to be conducted pursuant to the Commercial Rules of the American Arbitration Association.”

The trial court granted Roger’s motion to compel arbitration. Thereafter, the Dil-savers filed a motion for reconsideration, alleging, among other things, that Roger’s had failed to establish that the contract evidenced a transaction that substantially affected interstate commerce. The trial court set a hearing to determine the “arbitration issue.” Roger’s filed a response and submitted several affidavits establishing that the foundation-repair work could not be performed without the use of pro-lift hydraulic bottle jacks that were manufactured in Kansas City, Missouri, and purchased from a vendor located in Burns-ville, Minnesota. The jacks were used to lift the floor of the Dilsavers’ home, allowing access to Roger’s to perform the foundation repair.

The trial court denied the Dilsavers’ motion to reconsider on September 26, 2001, and entered a judgment accordingly. The Dilsavers filed a notice of appeal to the Alabama Supreme Court on November 6, 2001; that court transferred the appeal to this court pursuant to § 12-2-7, Ala.Code 1975.

Rule 4(d), Ala. R.App. P., adopted effective October 1, 2001, provides that both the denial and the granting of a motion to compel arbitration are reviewed by appeal. Before the adoption of Rule 4(d), the granting of a motion to compel arbitration was reviewed by a petition for a writ of mandamus. The Dilsavers filed their notice of appeal on November 6, 2001; therefore, the trial court’s judgment granting the motion to compel arbitration is to be reviewed by appeal. Rule 4(d), Ala. R.App. P.

“[T]he standard of review of a trial court’s' ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review:” Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999). “The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce.” Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000). “ ‘[A]fter a motion to compel [554]*554arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.’ ” Fleetwood Enters., Inc., 784 So.2d at 280 (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (opinion on application for rehearing)) (emphasis omitted).

The Dilsavers contend that the trial court erred in granting Roger’s motion to compel arbitration because, they say, Roger’s failed to meet its burden of proof in that it failed to show that the contract evidenced a transaction that substantially affected interstate commerce. Pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (“the Act”), where a contract satisfies the interstate-commerce criterion for the applicability of the Act, the Act preempts state law. Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869 (Ala.1999). If the Act does not apply, “Alabama law, and specifically § 8-1-41(3), Ala.Code 1975, applies to prohibit specific enforcement of ‘[a]n agreement to submit a controversy to arbitration.’ ” Powell, 748 So.2d at 872.

This court’s disposition of the present case is governed by the decisions of our Supreme Court in Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000), and its progeny. Under the Supreme Court’s holding in Sisters of the Visitation, five factors are relevant in determining whether a transaction substantially affects interstate commerce and whether an arbitration agreement is therefore enforceable pursuant to the Act. These factors are: (1) the citizenship of the parties and any affiliation they may have with out-of-state entities; (2) where the tools and equipment used at the project site originated and whether they had moved in interstate commerce; (3) the allocation of costs and services involved in the project; (4) subsequent movement across state lines; and (5) the degree of separability from other contracts. Sisters of the Visitation, 775 So.2d at 766; see also Alternative Financial Solutions, LLC v. Colburn, 821 So.2d 981, 984 (Ala.2001) (“ ‘As noted in Sisters of the Visitation, our analysis of this issue is necessarily fact-intensive and in making that analysis we are limited to the facts contained in the record.’ ” (quoting Brown v. Dewitt, Inc., 808 So.2d 11,

Application of Sisters of the Visitation to the Evidence Presented in this Case

(1) Citizenship of the parties and any affiliation they may have with out-of-state entities. Roger’s is an Alabama corporation with its principal place of business in Daphne. The Dilsavers are residents of Baldwin County. The contract was executed in Baldwin County and the foundation-repair work was to be performed on the Dilsavers’ house, which is located in Baldwin County. Thus, this factor does not support the motion to compel arbitration filed by Roger’s.

(2) Where the tools and equipment used at the project site originated and whether they moved in interstate commerce.

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Related

BROOKFIELD CONST. CO. v. Van Wezel
841 So. 2d 220 (Supreme Court of Alabama, 2002)
Alternative Financial Solutions, LLC v. Colburn
821 So. 2d 981 (Supreme Court of Alabama, 2001)
Jim Burke Automotive, Inc. v. Beavers
674 So. 2d 1260 (Supreme Court of Alabama, 1996)
Sisters of Visitation v. COCHRAN PLASTERING CO. INC.
775 So. 2d 759 (Supreme Court of Alabama, 2000)
Ex Parte Roberson
749 So. 2d 441 (Supreme Court of Alabama, 1999)
Ashy v. Trotter
888 So. 2d 344 (Louisiana Court of Appeal, 2004)
Brown v. Dewitt, Inc.
808 So. 2d 11 (Supreme Court of Alabama, 2001)
Fleetwood Enterprises, Inc. v. Bruno
784 So. 2d 277 (Supreme Court of Alabama, 2000)
Rogers Foundation Repair, Inc. v. Powell
748 So. 2d 869 (Supreme Court of Alabama, 1999)

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Bluebook (online)
866 So. 2d 551, 2002 Ala. Civ. App. LEXIS 865, 2002 WL 31888168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dilsaver-v-rogers-foundation-repair-co-alacivapp-2002.