{ "id": 9161391, "name": "HARDY CONSTRUCTION COMPANY, Inc. v. ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT", "name_abbreviation": "Hardy Construction Co. v. Arkansas State Highway & Transportation Department", "decision_date": "1996-05-28", "docket_number": "96-67", "first_page": "496", "last_page": "505", "citations": [ { "type": "official", "cite": "324 Ark. 496" }, { "type": "parallel", "cite": "922 S.W.2d 705" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "607 S.W.2d 623", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1980, "opinion_index": 0 }, { "cite": "270 Ark. 816", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709235 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0816-01" ] }, { "cite": "317 Ark. 139", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443797 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0139-01" ] }, { "cite": "320 Ark. 581", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451146 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0581-01" ] }, { "cite": "322 Ark. 720", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447493 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0720-01" ] }, { "cite": "323 Ark. 643", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1445716 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/323/0643-01" ] }, { "cite": "312 Ark. 302", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935009 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0302-01" ] }, { "cite": "Ark. Code Ann. \u00a7 2-2-419", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "parenthetical": "a" } ], "opinion_index": 0 }, { "cite": "1921 Ark. Acts 116", "category": "laws:leg_session", "reporter": "Ark. Acts", "opinion_index": 0 }, { "cite": "270 S.W. 946", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "year": 1925, "pin_cites": [ { "page": "953" } ], "opinion_index": 0 }, { "cite": "168 Ark. 504", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723388 ], "weight": 2, "year": 1925, "pin_cites": [ { "page": "521-522" } ], "opinion_index": 0, "case_paths": [ "/ark/168/0504-01" ] }, { "cite": "303 Ark. 89", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882695 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "91" }, { "page": "790" } ], "opinion_index": 0, "case_paths": [ "/ark/303/0089-01" ] }, { "cite": "182 P.2d 182", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1947, "opinion_index": 0 }, { "cite": "30 Cal. 2d 335", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 2233643 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/cal-2d/30/0335-01" ] }, { "cite": "100 Md. App. 714", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 4420424 ], "weight": 4, "year": 1994, "pin_cites": [ { "parenthetical": "dictum" }, { "parenthetical": "dictum" }, { "page": "895" } ], "opinion_index": 0, "case_paths": [ "/md-app/100/0714-01" ] }, { "cite": "316 Ark. 143", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907799 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0143-01" ] }, { "cite": "305 Ark. 284", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916794 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/305/0284-01" ] }, { "cite": "314 Ark. 19", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912745 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0019-01" ] }, { "cite": "319 Ark. 659", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453596 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0659-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-108-217", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 16-108-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 767, "char_count": 17810, "ocr_confidence": 0.789, "pagerank": { "raw": 2.4128745588720014e-07, "percentile": 0.8001292739460872 }, "sha256": "33ce6663e4c9e656227d2022598fab25daae0df3e13272a6ebe111107af1f06e", "simhash": "1:1baee510572c5ffc", "word_count": 2852 }, "last_updated": "2023-07-14T16:22:54.921906+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Dudley, J., not participating.", "Glaze, J., concurs." ], "parties": [ "HARDY CONSTRUCTION COMPANY, Inc. v. ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT" ], "opinions": [ { "text": "ROBERT L. Brown, Justice.\nAppellant Hardy Construction Company, Inc., appeals the chancery court\u2019s dismissal of its petition for the appointment of an arbitrator and raises four points for reversal: (1) the chancery court was required by statute to appoint an arbitrator; (2) the arbitrators decide procedural matters, not the courts; (3) the chancery court has jurisdiction to enforce the arbitration clauses at issue; and (4) sovereign immunity is no defense to the petition by Hardy Construction. We agree with Hardy Construction that the chancery court had subject-matter jurisdiction, but we affirm the decision of that court because of the insufficiency of the abstract.\nIn 1987, Hardy Construction entered into a contract with appellee Arkansas State Highway and Transportation Department to construct a project designated as Missouri Street overpass in West Memphis. In 1989, the same parties contracted for Hardy Construction to construct a second project, also in West Memphis, designated as the West Memphis Interchange at Interstate Highway 55. Both contracts provided that any disputes would be setded by arbitration.\nThe two contracts provided with respect to arbitration that each party would appoint a member to serve on the arbitration panel. Those two arbitrators would then select a third member. The provision further states:\nIf such arbitrators are unable to agree upon the third member of the Board of Arbitration within ten (10) calendar days after their appointment, application may be made by either party to the Chancery Court of Pulaski County within ten (10) calendar days for such purpose, and the court shall, on or before ten (10) calendar days thereafter[,] appoint a disinterested party to serve as the third member of said Board of Arbitration.\nThe contracts further provided that prefatory to arbitration any disputes must be submitted to the resident engineer and, if unsuccessful, then appealed to the Chief Engineer of the Highway Department for final decision. Within 20 days of an unfavorable decision, a party could request arbitration. Thus, according to the contracts, the party requesting arbitration first had to exhaust all remedies within the Highway Department.\nDisputes arose over the final estimates of compensation due Hardy Construction on both projects. On June 21, 1995, Hardy Construction gave notice of arbitration and designated its arbitrator for the arbitration process. On August 4, 1995, Hardy Construction filed its Petition for Appointment of Arbitrator. In that petition, Hardy Construction asserted that the Highway Department had refused to select its arbitrator and was frustrating the arbitration process under both contracts. Hardy Construction further prayed that the chancery court appoint the third arbitrator in accordance with the contracts so as to move the process along.\nOn August 28, 1995, the Highway Department moved to dismiss the petition in separate motions for each job. (Both motions are substantially the same and are treated as one for purposes of this opinion.) The Department urged in its motion that the petition failed to show that the chancery court had jurisdiction over the subject matter and further that Hardy Construction had failed to allege that it had exhausted administrative remedies under the contracts by submitting the dispute to the Department\u2019s engineers. Finally, the Department cited sovereign immunity as grounds for dismissal. On September 5, 1995, Hardy Construction amended its petition to add a paragraph to state \u201cthat all conditions precedent have been performed ...\u201d On October 16, 1995, the chancery court concluded in part:\nPlaintiff has appointed an arbitrator; however, the defendant has not appointed an arbitrator, because it contends plaintiff has not followed the administrative procedures under the contract. Therefore, there is no situation where the two arbitrators appointed by the parties are unable to agree on a third arbitrator, and, under the terms of the contract, that is the only provision for court intervention.\nPlaintiff amended its petition on September 5, 1995; however, it still does not request any relief in this court that is cognizable in equity. It is simply trying to get this court to appoint a third arbitrator, and the provisions for that contingency have not occurred. Since plaintiff is asking this court to perform a duty that is not provided for in the contract, it is attempting to modify the terms of the arbitration provisions. At the hearing, plaintiff contended that it was asking for specific performance; however, its pleadings have not been amended, nor have any additional parties been named. It is axiomatic that the State cannot \u201cbe made a defendant in any of her courts.\u201d Article 5, Section 20, Constitution of Arkansas.\nThe chancery court ordered that the petition be dismissed under Ark. R. Civ. P. 12(b)(6).\nI. Jurisdiction\nThe issue of subject-matter jurisdiction raised by the Highway Department is paramount and must be addressed first. Under the Uniform Arbitration Act, codified at Ark. Code Ann. \u00a7 16-108-201 et seq. (1987), the following section is found:\nThe term \u201ccourt\u201d means any circuit or chancery court of this state. The making of an agreement described in \u00a7 16-108-201 providing for arbitration in this state confers jurisdiction on the court to enforce the agreement under this subchapter and to enter judgment on an award thereunder.\nArk. Code Ann. \u00a7 16-108-217 (1987). The contract provision set forth above in this opinion alludes to jurisdiction in Pulaski County Chancery Court. While it is true that the parties may by agreement consent to personal jurisdiction in a given court, subject-matter jurisdiction cannot be conferred merely by agreement of the parties. See, eg., Flemens v. Harris, 319 Ark. 659, 893 S.W.2d 783 (1995); Arkansas Dep\u2019t of Human Servs. v. Estate of Hogan, 314 Ark. 19, 858 S.W.2d 105 (1993); Nelms v. Morgan Portable Bldg. Corp., 305 Ark. 284, 808 S.W.2d 314 (1991). Thus, if subject-matter jurisdiction is appropriate, the parties may agree on the appropriate court in which to resolve disputes.\nHardy Construction argues that subject-matter jurisdiction is appropriate in chancery court because the relief requested is akin to a mandatory injunction to enforce the contract or, alternatively, to specific performance of the contract provision relating to court appointment of an arbitrator. Specific performance is an equitable remedy cognizable only in equity. Arkansas State Employees Ins. Advisory Comm. v. Estate of Manning, 316 Ark. 143, 870 S.W.2d 748 (1994). Although there is no case in Arkansas that specifically addresses whether the chancery court has jurisdiction to act to enforce an arbitration agreement pursuant to statutory authority, foreign jurisdictions have treated these actions as ones for specific performance of a contract to arbitrate. See Annapolis Professional Firefighters Local 1926, IAFF, AFL-CIO v. City of Annapolis, 100 Md. App. 714, 642 A2d 889 (1994) (dictum); Trubowitch v. Riverbank Canning Co., 30 Cal. 2d 335, 182 P.2d 182 (1947); see also 4 Am. Jur. 2d Alternative Dispute Resolution \u00a7 113, p. 158 (1995).\nFor example, in Annapolis Professional Firefighters Local 1926, IAFF, AFL-CIO, supra, the Maryland Court of Special Appeals addressed by way of dictum the power of a court of equity to appoint an arbitrator under the Uniform Arbitration Act when the agreed method failed or otherwise could not be followed:\nAlthough this power, under the Act, is a statutory one, it is not foreign to or inconsistent with the general equitable jurisdiction of a circuit court. Equity courts have long had the power, for example, when specifically enforcing agreements, to appoint trustees to carry out their decrees when a party proves recalcitrant or when otherwise necessary to implement the agreement.\nAnnapolis Firefighters, 642 A.2d at 895.\nTo support its argument that the chancery court did not have subject-matter jurisdiction, the Highway Department directs our attention to Bates v. Bates, 303 Ark. 89, 793 S.W.2d 788 (1990). In that case, this court reiterated that the General Assembly is without authority to expand the jurisdiction of chancery courts beyond that granted by the 1874 Arkansas Constitution. Bates, 303 Ark. at 91, 793 S.W.2d at 790. In Bates, we held specifically that the General Assembly could not expand the chancery court\u2019s jurisdiction to include areas of criminal law. The Bates case, though, is distinguishable from Annapolis Firefighters and the instant case because the latter situations add nothing to a court of equity\u2019s traditional responsibilities to specifically enforce agreements to arbitrate under certain circumstances.\nThough Arkansas does not have a precise case in point, an analogous situation arose in Arkansas Cotton Growers Coop. Ass\u2019n v. Brown, 168 Ark. 504, 270 S.W. 946 (1925). In Brown, we interpreted the Cooperative Marketing Act, including a provision of the Act which gave the Association the right to seek an injunction in equity against a member \u201cto prevent the further breach of the contract and to a decree of specific performance thereof.\u201d see 1921 Ark. Acts 116, \u00a7 17, codified at Ark. Code Ann. \u00a7 2-2-419 (a)(1) (Repl. 1996). We stated in Brown:\nIt is contended that the chancery court does not possess jurisdiction to prevent a breach by injunction and thereby compel specific performance of the contract. The statute creating the association contains an express provision for such relief, but it is contended that this statute constitutes an attempt to enlarge the jurisdiction of the court, which is beyond the power of the lawmakers. We do not agree to this view, for it has always been within the jurisdiction of courts of equity to grant relief where legal remedies are inadequate, and it is evident that, by reason of the peculiarity of the cooperative marketing plan, any legal remedy would be wholly inadequate. The only remedy at law would be a suit to recover damages, but this remedy is inadequate, for the reason that the recovery of damages for a failure to deliver cotton would not repair the injury done if a substantial number of the members should refuse to deliver cotton.\n168 Ark. at 521-522, 270 S.W. at 953.\nIt is clear that the chancery court had jurisdiction to enforce the contracts in this case pursuant to the Uniform Arbitration Act.\nII. Abstract\nWe turn then to a consideration of the abstract presented by Hardy Construction and whether it presents us with enough information to enable us to decide the points raised on appeal. We conclude that it does not.\nHardy Construction\u2019s first point is that the Uniform Arbitration Act, as codified in part at \u00a7 16-108-203, authorizes a party to petition the court to appoint one or more arbitrators \u201cif the agreed method fails or for any reason cannot be followed.\u201d Here, according to Hardy Construction, that is exactly what transpired because the agreed method has failed. Our problem with this argument is that there is nothing in the abstract to indicate \u00a7 16-108-203 was argued to the chancery court or that a ruling was obtained with respect to that argument. See Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993). The response by Hardy Construction to the motion to dismiss is not abstracted, and there is nothing in the chancery court\u2019s order otherwise reflecting that \u00a7 16-108-203 was considered by the chancery court.\nThis court has been adamant in refusing to consider arguments raised for the first time on appeal, where that argument has not been first presented to the trial court for resolution. See, e.g., Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996); Thompson v. Perkins, 322 Ark. 720, 911 S.W.2d 582 (1995). While the issue or argument may be contained in a pleading or brief in the record, we have said many times that there are seven justices of the Supreme Court and one record, and we will not be placed in the position of having seven justices scour one record for pertinent information. Kearney v. Committee on Prof. Conduct, 320 Ark. 581, 897 S.W.2d 573 (1995); Stroud Crop, Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994). We, accordingly, affirm due to lack of sufficient information in the appellant\u2019s abstract to enable us to decide this point. See Ark. Sup. Ct. R. 4-2 (b)(2).\nThe same holds true for the remaining points raised by Hardy Construction. Its abstract does not reveal that the issue of procedural arbitrability and whether that is a matter for the arbitration panel to decide or the courts was ever brought to the chancery court\u2019s attention. Nor does the abstract reveal whether Hardy Construction\u2019s arguments in opposition to the doctrine of sovereign immunity were brought to the attention of the chancery court. The chancery court did proclaim in its order that the State cannot \u201cbe made a defendant in any of her courts,\u201d but the court\u2019s order, as abstracted, does not evidence that Hardy Construction raised the same arguments in opposition to the sovereign immunity doctrine at the trial court level that it now makes on appeal. What is clear from the chancery court\u2019s order is that it made its decision based on the failure of the two contracts to contemplate an appointment of a third arbitrator by the chancery court under the circumstances presented by Hardy Construction. The chancery court further appears to have decided that the Highway Department cannot be estopped from raising a sovereign immunity defense when it did not agree to a judicial appointment of an arbitrator under these conditions. Cf. Foote\u2019s Dixie Dandy v. McHenry, 270 Ark. 816, 607 S.W.2d 623 (1980).\nHardy Construction contends that there was no need to abstract the hearing before the chancery court or its response to the Highway Department\u2019s motion to dismiss because the arguments it made are merely duplicative of those made in its brief on appeal. But showing this court in the appellant\u2019s abstract that an argument has been raised and considered by the trial court is an absolute prerequisite to our review on appeal. Because the abstract is deficient in that regard, we affirm the chancery court\u2019s order. See Ark. Sup. Ct. R. 4-2(b)(2).\nAffirmed.\nDudley, J., not participating.\nGlaze, J., concurs.\nCircuit courts in Maryland sit as courts of law and courts of equity. Md. Courts & Judicial Proceedings Code Ann. \u00a7 1-501 (Repl. 1995).", "type": "majority", "author": "ROBERT L. Brown, Justice." }, { "text": "Tom Glaze, Justice,\nconcurring. I concur. While I agree to affirm, I disagree with the majority court\u2019s assertion that appellant\u2019s abstract is so deficient the court cannot decide whether the chancery court erred in failing to appoint an arbitrator as required under Ark. Code Ann. \u00a7 \u00a7 16-108-201 \u2014 224 (1987 and Supp. 1995). The majority opinion states that there is nothing in the abstract to indicate \u00a7 16-108-203 was argued to the chancery court or that a ruling was obtained with respect to that argument. Not true.\nI first point out that the chancellor\u2019s order, as abstracted, dismissed the appellant\u2019s action and set out findings reflecting the appellant had filed suit asking the court to appoint an arbitrator as provided under the terms of the parties\u2019 contract. The chancellor further found the appellant was relying on \u00a7 16-108-201, et seq. She stated in her order that appellant\u2019s action was to enforce the parties\u2019 contract which provided for arbitration, but that certain contingencies had to occur before the court appointed a third arbitrator. She ruled those contingencies had not occurred.\nThe abstract further reflects that the appellee contended below that, under the parties\u2019 agreement, the party (appellant) seeking arbitration must first exhaust all administrative remedies by first submitting the parties\u2019 dispute for resolution to appellee\u2019s Resident Engineer, and if not resolved by that engineer, to appellee\u2019s Chief Engineer. Because appellant failed to exhaust its administrative remedies, appellee refused to choose an arbitrator. The chancellor agreed that, under the terms of the parties\u2019 contract, she could not intervene to appoint a third arbitrator because the contingencies or conditions of the contract had not been met.\nIn sum, appellant\u2019s abstracting of its petition with exhibits, appellee\u2019s motion to dismiss, and the court\u2019s order presents the essential parts of the record to determine if the chancellor was correct in refusing to appoint an arbitrator under the terms of the parties\u2019 arbitration agreement. From the abstracted record, the chancellor was correct because appellant had not exhausted its remedies, and, therefore, under contract terms appellee was not required to appoint an arbitrator. Consequently, because these contractual prerequisites had not been met, the trial court correctly decided it could not intervene to appoint a third arbitrator. The trial court should be affirmed, but only after reaching the merits of all issues presented on appeal.\nSection 16-108-203 provides as follows:\nIf the arbitration agreement provides a method of appointment of arbitrators, this method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails or is unable to act and his successor has not been duly appointed, the court on application of a party shall appoint one (1) or more arbitrators. An arbitrator so appointed has all the powers of one specifically named in the agreement. (Emphasis added.)", "type": "concurrence", "author": "Tom Glaze, Justice," } ], "attorneys": [ "Rose Law Firm, by: John A. Davis III, for appellant.", "Robert L. Wilson, Chief Counsel, Mark J. Whitmore, and Lawrence W. Jackson, for appellee." ], "corrections": "", "head_matter": "HARDY CONSTRUCTION COMPANY, Inc. v. ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT\n96-67\n922 S.W.2d 705\nSupreme Court of Arkansas\nOpinion delivered May 28, 1996\n[Petition for rehearing denied July 1, 1996.]\nRose Law Firm, by: John A. Davis III, for appellant.\nRobert L. Wilson, Chief Counsel, Mark J. Whitmore, and Lawrence W. Jackson, for appellee.\nDudley, J., not participating." }, "file_name": "0496-01", "first_page_order": 520, "last_page_order": 529 }