Hurley v. Fox

559 So. 2d 887, 1990 La. App. LEXIS 687, 1990 WL 35486
CourtLouisiana Court of Appeal
DecidedMarch 29, 1990
DocketNo. 89-CA-1454
StatusPublished
Cited by4 cases

This text of 559 So. 2d 887 (Hurley v. Fox) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hurley v. Fox, 559 So. 2d 887, 1990 La. App. LEXIS 687, 1990 WL 35486 (La. Ct. App. 1990).

Opinion

WILLIAMS, Judge.

Plaintiff appeals the judgment of the trial court in favor of defendant. The trial court found that Mrs. John E. Hurley and Barry Fox had entered into a written agreement containing an arbitration clause. The court further found that the arbitration clause satisfies the requirements of LSA-R.S. 9:4201, and confirmed the award of the arbitrator in favor of defendant Barry Fox. We affirm the judgment of the trial court.

Facts

In the latter part of 1980, plaintiff sought the services of defendant, an architect, in connection with the construction of a residence. On December 31, 1980, defendant sent to Mrs. Hurley a letter in which he discussed the copy of a Standard American Institute of Architects (AIA) Agreement Between Owner and Architect, which he had signed and enclosed. At plaintiff’s request, defendant sent copies of the letter and contract to plaintiff’s attorney, Mr. M. Truman Woodward.

Plaintiff and defendant met several times to discuss and/or work on the project. Mrs. Hurley had the defendant view the house she granted duplicated. Mr. Fox drew several schematic and preliminary drawings of the house. However, he understood at that time that Mrs. Hurley was not certain whether she would build the new residence.

Mrs. Hurley decided to go forward with the project in March of 1982. Defendant, serving as architect on the project, worked toward finding a contractor and eventually hired Mr. Robert S. Amoss. The house was completed under the direction of defendant.

After completion of the project, disputes arose over matters of construction and design. In a letter dated August 24, 1984, plaintiff’s attorney, Emile A. Wagner, III, an associate of Mr. Woodward, notified Mr. Fox that Mrs. Hurley was dissatisfied with certain aspects of the house and was prepared to seek a determination of her claim in appropriate arbitration proceedings.

In February of 1986, Barry Fox initiated arbitration proceedings to recover the unpaid portion of his fees, $13,910.20, pursuant to the AIA Agreement Between Owner and Architect which he had delivered to Mrs. Hurley and her attorney. Both parties participated in the arbitration process for eight months. Mrs. Hurley filed a counterclaim for damages arising from those aspects of design and construction with which she was dissatisfied. Hurley and Fox considered, suggested, accepted or rejected several arbitrators and finally agreed upon Mr. Favret. They agreed upon a location for the hearing, and agreed that the hearing would take place on December 8, 1986.

On November 21, 1986, counsel for Mrs. Hurley, A.R. Christovich, informed the American Arbitration Association (AAA) that Mrs. Hurley would not participate in the arbitration proceedings because she [889]*889had not signed a contract providing for arbitration. Plaintiffs counsel informed the AAA that his client considered the proceedings to be at an end. Defendant maintained that under the terms of the contract into which the parties had entered, plaintiff was obligated to submit matters of controversy to binding arbitration.

On December 2, 1986, Mrs. Hurley filed suit in district court. Defendant moved the court to stay its proceedings pending completion of the arbitration proceedings. Mr. Fox did not move the court to determine the validity of the arbitration agreement nor to order plaintiffs participation, nor did Mrs. Hurley move the court to stay the arbitration proceedings.

Counsel for Barry Fox continued to maintain that the arbitration proceedings were valid and would go forward as planned. On December 4, 1986, AAA notified counsel for both plaintiff and defendant, and the arbitrator, Mr. Favret, that the hearing would take place as scheduled on December 8, 1986, pursuant to Rule 30 of the Construction Industry Rules.1

The arbitration hearing was conducted in plaintiffs absence. Defendant presented both testimonial and documentary evidence. The arbitrator found in favor of defendant, awarding him the entire amount which he claimed was the unpaid portion of his fee. Plaintiff appeals the finding of the trial court that she had agreed to binding arbitration and the confirmation of the award in favor of defendant.

Appellant argues that because she did not sign the AIA Agreement, in which the arbitration clause is found, she cannot be bound by that document. On a previous appeal by defendant, this court ruled that a written agreement to arbitrate need not be signed by the parties.2 Hurley v. Fox, 520 So.2d 467 (1988). We are now bound by that judgment.

The only issues presented herein are whether the written contract signed by defendant expresses the terms of the agreement, if any, which existed between the parties, and whether the arbitration clause in the agreement satisfies the requirements of LSA-R.S. 9:4201.

Agreement Between the Parties

Plaintiff claims that she did not enter into and cannot be bound by the written contract (AIA Standard Form Agreement Between Owner and Architect) because at the time she contacted defendant in 1981, she had still not decided whether she would build a. house. Plaintiff claims that the fact that her counsel, M. Truman Woodward, only specifically directed her to read pages 10 and 11 of the contract form is further proof that there was no meeting of the minds as to the contract. Although Mrs. Hurley testified that she would not willingly and knowingly execute a document providing for binding and final arbitration, she did in fact sign a construction contract calling for binding arbitration. Counsel for plaintiff argues that plaintiff signed that contract only upon advice of her attorney without reading the document and without knowing that it had an arbitration clause.

We find that the record clearly supports the trial court finding that the AIA Standard Form Agreement Between Owner and Architect expresses the terms of the agreement between the parties.

[890]*890In December of 1980, defendant submitted an AIA Standard Form Agreement between Owner and Architect with a cover letter to Mrs. Hurley in his office. The letter mentioned at length the contract details of the fees of the architect, chargeable expenses, design phases, bidding, and inspection and administration phases. At the end of the letter was a notation: “Enclosure — Contract.” Fox testified that he pointed out to plaintiff the articles allowing plaintiff to submit a written request to defendant that he stop work on the project. He also pointed out the articles indicating the amount of the fee and how it would be disbursed. At plaintiffs request, Fox sent a copy of the letter and contract to plaintiffs counsel, M. Truman Woodward. Neither Mr. Woodward nor Mrs. Hurley ever indicated to Mr. Fox that any part of the contract was unsatisfactory.

Mrs. Hurley was a graduate of Newcomb College, where she majored in finance. She received a Master’s in Business Administration from Tulane University in 1952. She has been an active community board member since she was 21 years old. During World War II she was Vice Chairman of the War Finance Committee, raising millions of dollars through the sale (by agents) of war bonds.

Mrs. Hurley stated more than once that she does not handle her own legal affairs, only her financial affairs. She testified that she read only pages 10 and 11 of the contract, because those were the only pages to which her attorney specifically called her attention. The fact that Mrs.

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Cite This Page — Counsel Stack

Bluebook (online)
559 So. 2d 887, 1990 La. App. LEXIS 687, 1990 WL 35486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hurley-v-fox-lactapp-1990.