New Concept Construction Co. v. Kirbyville Consolidated Independent School District

119 S.W.3d 468, 2003 Tex. App. LEXIS 8856, 2003 WL 22351425
CourtCourt of Appeals of Texas
DecidedOctober 16, 2003
Docket09-03-124 CV
StatusPublished
Cited by9 cases

This text of 119 S.W.3d 468 (New Concept Construction Co. v. Kirbyville Consolidated Independent School District) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New Concept Construction Co. v. Kirbyville Consolidated Independent School District, 119 S.W.3d 468, 2003 Tex. App. LEXIS 8856, 2003 WL 22351425 (Tex. Ct. App. 2003).

Opinions

OPINION

DAVID B. GAULTNEY, Justice.

This appeal arises from the trial court’s order staying arbitration proceedings. New Concept Construction Company, Inc. (New Concept) initiated arbitration proceedings to resolve a claim against Kirby-ville Consolidated Independent School District (KCISD) for wrongful termination of a contract. New Concept appeals the order staying arbitration.

KCISD and New Concept entered into a contract regarding New Concept’s construction of a high school gymnasium for KCISD. The contract included a “Disputes” resolution clause and incorporated a document entitled the “General Conditions of the Contract for Construction.” The Contract provides, in part, as follows:

ARticle I — The ConstRUction Documents
The Contract Documents consist of this Agreement, the Conditions of the Contract, (General, Supplementary and other conditions); the Drawings, the Specifications, Attachments, all Addenda issued prior to and all Modifications issued after execution of this agreement.
[[Image here]]
ARticle IX — Disputes
9.1 All matters relating to the validity, performance, interpretation of [sic] construction of the contract documents or breach thereof shall be governed by and construed in accordance with the laws of the state of Texas. The Contractor shall not institute any action of [sic] proceeding in any way relating to this agreement against the Owner except in a court of competent jurisdiction in the County in which the work was performed.

The “General Conditions” document contains a section requiring arbitration. Consisting of nine paragraphs, the arbitration section sets out the types of controversies and claims that are subject to arbitration, the rules and notices for arbitration, the time frame for demanding arbitration, the limitations on consolidation or joinder of other claims or parties, the possibility of amendment of claims, and the entry of judgment on the award by “any court having jurisdiction thereof.”

The trial court found that the “Disputes” provision of the Contract and the arbitration section of the “General Conditions” are in irreconcilable conflict. In an effort to harmonize the two provisions, the trial judge admitted parol evidence to ascertain the intent of the parties. KCISD argues this evidence supports the trial court’s finding that the parties did not intend to arbitrate disputes under the contract, and that no valid arbitration agreement exists. In contrast, New Concept argues the provisions do not conflict or render the contract ambiguous. New Concept further maintains, based on its argument of no irreconcilable conflict and no ambiguity, that the trial court erred in admitting par-ol evidence to ascertain the intent of the parties.

Generally, a court should presume the parties to a contract intend each clause to have some effect, and the court should not strike down any portion of the contract unless there is an irreconcilable conflict. Ogden v. Dickinson State Bank, 662 S.W.2d 330, 332 (Tex.1983). We ascertain and give effect to the parties’ intentions as expressed in the document itself. See Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 867, 861 (Tex.2000). [470]*470The provisions are to be interpreted, to the extent possible, in a way that gives effect to the entire agreement and harmonizes potential conflicts between differing provisions. See MCI Telecomms. Corp. v. Texas Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex.1999). If a written contract is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous and the court will construe the contract as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). Only when the court finds the contract ambiguous may the court consider parol evidence of the parties’ intentions. See National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). When a contract is not ambiguous, the contract should be enforced as written. Lopez, 22 S.W.3d at 862.

In reviewing the two contract provisions, we conclude they do not irreconcilably conflict. KCISD acknowledges that the selection of Texas law to govern disputes under the contract is a typical choice of law provision and does not conflict with the arbitration section. It is Article IX’s second sentence that KCISD says irreconcilably conflicts with the arbitration clause and renders the contract ambiguous. The second sentence says the contractor shall not institute any action or proceeding on the contract except in the county where the work is to be performed. This section, however, can be harmonized with the arbitration provisions, as other courts of appeals have done with similar provisions. In Cash Am. Int’l, Inc. v. Exchange Servs., Inc., 83 S.W.3d 183 (Tex.App.-Amarillo 2002, no pet.), the court rejected an argument that a venue provision contradicted an arbitration provision. Id. at 188. In In re Winter Park Constr., Inc., 30 S.W.3d 576, 578 (Tex.App.-Texarkana 2000, orig. proceeding), the court held that a forum selection clause did not supersede or obviate an arbitration provision, because the choice of law and venue provisions did not contain any language explicitly excluding the arbitration provided for in the contract. Another appellate court has made a similar holding. See also In re Orkin Exterminating Co., No. 01-00-00730-CV, 2000 WL 1752900 (Tex.App.-Houston [1st Dist.] 2000, orig. proceeding) (not designated for publication) (holding, in a case where the party sought arbitration under the Federal Arbitration Act, that a contract provision concerning suits in court did not conflict with an arbitration provision and the provisions could be harmonized).

The forum selection provision at issue here is consistent with the arbitration provision. Article IX, the “Disputes” section, does not specifically exclude arbitration. And, as provided in the Texas General Arbitration Act (“Act”), trial court involvement is contemplated in the arbitration context under certain specified circumstances. See Tex. Civ. Prac. & Rem.Code Ann. §§ 171.081-171.098 (Vernon Supp. 2003). Subchapter D of the Act entitled “Court Proceedings,” confers jurisdiction on a court to enforce an arbitration agreement and to render judgment on an arbitration award. See Tex. Civ. Prac. & Rem. Code Ann. § 171.081 (Vernon Supp.2003). If the court’s assistance becomes necessary during the arbitration process, or if arbitration is waived, the parties’ forum selection provision in Article IX establishes venue in the county where the work was performed.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

in Re: Giant Eagle, Inc.
Court of Appeals of Texas, 2015
In re the Marriage of Dorsey
2014 COA 19 (Colorado Court of Appeals, 2014)
Sims v. Clarendon National Insurance
336 F. Supp. 2d 1311 (S.D. Florida, 2004)
Bowers v. Jefferson Pilot Financial Insurance
219 F.R.D. 578 (E.D. Michigan, 2004)
In Re GTE Mobilnet of South Texas Ltd. Partnership
123 S.W.3d 795 (Court of Appeals of Texas, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
119 S.W.3d 468, 2003 Tex. App. LEXIS 8856, 2003 WL 22351425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-concept-construction-co-v-kirbyville-consolidated-independent-school-texapp-2003.