Present: All the Justices
WATERFRONT MARINE CONSTRUCTION, INC.
v. Record No. 951218 OPINION BY JUSTICE ELIZABETH B. LACY
April 19, 1996
NORTH END 49ERS SANDBRIDGE BULKHEAD
GROUPS A, B AND C
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
In this appeal we consider whether the trial court's
confirmation of an arbitration award was erroneous because the
claims in the demand for arbitration either were not arbitrable
or were barred by the doctrine of res judicata.
North End 49ers Sandbridge Bulkhead Groups A, B, and C
(49ers) is an unincorporated association of 22 landowners in
the Sandbridge section of Virginia Beach. In 1988, the 49ers
sought bids for the construction of a bulkhead along their
property. Waterfront Marine Construction, Inc. (WMC) presented
a bid to construct sheet steel bulkheads with tiebacks rather
than the wooden bulkheads previously used in the Sandbridge
area. The 49ers accepted WMC's bid and entered into an
agreement with WMC for the construction of the bulkhead at a
1
price of $850,740.00. The construction contract included a
provision providing for arbitration of any controversy or claim
"arising out of or relating to the Contract or the breach
thereof."
In 1989, the 49ers hired an engineering firm to inspect
the bulkhead WMC had installed after a bulkhead of similar
1
The agreement was contained in three separate contracts
which were identical in content but executed separately by the
landowners in Group A, B, or C respectively. For purposes of
this appeal, the three contracts are considered as a single
contract.
design had failed during a storm. At that point, the 49ers'
bulkhead had not been completely backfilled. The inspection
report concluded that the bulkhead design and construction were
defective. Following the receipt of this report, the 49ers
filed a demand for arbitration with the American Arbitration
Association (AAA). The 49ers sought damages of $1,212,282.00,
based on bids they received for work they contended was
necessary to correct deficiencies in the bulkhead. WMC also
filed a demand with the AAA seeking to recover $127,382.44 --
the unpaid balance of the construction price, plus interest and
arbitration costs.
An arbitration panel comprised of three engineers was
appointed by the AAA. Following a hearing, the panel entered
an award on March 7, 1991, denying the 49ers' claim and
granting WMC's claim. The arbitrators also ordered WMC to
perform certain work relating to the tie rod connections and
anchor piles within 60 days. According to the terms of the
award, the work had to be performed to the satisfaction of an
independent engineer jointly hired and paid by the 49ers and
WMC. The award required WMC to guarantee the work done for one
year from the date the independent engineer determined that the
work was completed.
Despite numerous attempts, WMC and the 49ers could not
agree on the independent engineer and, consequently, WMC did
not perform the work required under the first arbitration
award. During this time, the spring and summer of 1991, the
parties engaged in settlement discussions. On October 31,
1991, an unusually strong northeaster hit the 49ers' property,
but the bulkhead did not collapse. A second storm hit five
days later, damaging approximately 600 feet of the 2,340-foot
bulkhead.
On January 16, 1992, the 49ers filed a second demand for
arbitration with the AAA, characterizing it as "a continuation"
of the previous arbitration case, and requesting that the same
panel be assembled to hear the demand. They also sought
punitive damages. The AAA determined, however, that the matter
was "filed as a new matter" and that reconvening the members of
the original arbitration panel required agreement of the
parties. The AAA also noted that WMC had raised an issue of
"arbitrability" and stated "[a]s a nonjudicial body, the
Association cannot determine whether or not an issue is
arbitrable. Therefore, we will proceed with further
administration of this case, unless otherwise requested by both
parties, or unless the moving party is stayed by court order."
WMC filed a motion in the trial court seeking a temporary
injunction to stay the pending arbitration proceeding. In its
pleadings, WMC also sought a declaratory judgment that the
49ers' second arbitration demand was barred by collateral
estoppel and res judicata. The trial court entered an ex parte
order on September 4, 1992, enjoining the arbitration
proceedings. Following a hearing on March 18, 1993, the trial
court ruled from the bench that the first arbitration award was
final, that it could be "recognized in the form of a judgment,"
and that it could be enforced. The court found that there was
no agreement to "arbitrate the arbitration award."
The 49ers filed a motion to reconsider and, after further
consideration of memoranda and argument of counsel, the trial
court reversed its prior position and vacated its September 4
order enjoining further arbitration proceedings. The court
entered an order on September 30, 1993, referring the following
matters to arbitration: 1) whether the dispute involving the
first arbitration award was arbitrable; 2) whether res judicata
was applicable to the claim; and 3) whether the 49ers were
entitled to punitive damages.
The arbitration panel determined that the dispute
centering on enforcement of the first arbitration award was
arbitrable. After a two-day hearing, the panel issued a second
arbitration award on July 8, 1994. That award required the
49ers to pay WMC the balance due from the first arbitration
award and required WMC to pay a total of $491,795.00 to the
49ers for repair and replacement of the bulkhead and tie-back
system, pre-arbitration costs, and property damage.
Pursuant to Code § 8.01-581.09, the 49ers filed a motion
in the trial court to confirm the second arbitration award.
WMC filed a motion seeking to vacate the award pursuant to Code
§ 8.01-581.10 based on allegations, inter alia, that the
arbitrators exceeded their authority by addressing issues that
should have been resolved by the court and resolving issues
that were not arbitrable. WMC also sought a modification of
the award pursuant to Code § 8.01-581.011. After considering
memoranda and argument of counsel, the trial court entered an
order on March 30, 1995, denying WMC's motion to vacate,
granting WMC's motion to modify by removing approximately
$17,000 in pre-arbitration costs from the amount owed to the
49ers, and confirming the award as modified. We awarded WMC an
appeal.
WMC raises a number of issues in its challenge to the
trial court's action confirming the second arbitration award.
These issues include whether the trial court's reference of the
second demand for arbitration to the arbitration panel was
erroneous because the claims in the demand either were not
arbitrable or were barred by the doctrine of res judicata,
whether the trial court used the proper standard of review in
confirming the second arbitration award, and whether compulsory
arbitration is available to current members of the 49ers who
were not signatories to the 1988 contract which contained the
arbitration agreement. We begin by considering a threshold
issue raised by WMC: whether the trial court erred in its
determination that the arbitration panel should decide the
arbitrability of the claims contained in the 49ers' second
demand for arbitration.
I. DECIDING ARBITRABILITY
WMC argues that the court, not the arbitrators, should
determine whether a dispute is arbitrable. Therefore, it
contends, the trial court erred when it referred to the
arbitration panel the issue whether the compliance dispute was
arbitrable. The 49ers maintain that Code § 8.01-581.02(B)
restricts the trial court's role to considering only whether
there is an agreement to arbitrate and that, in the absence of
a specific agreement to the contrary, the arbitrators have the
authority to resolve the issue of arbitrability. Because the
existence of an arbitration agreement is not contested here,
the 49ers conclude that the trial court properly referred the
issue whether a dispute over the enforcement of the first award
was arbitrable to the arbitration panel for resolution.
A. THE STATUTE
Contrary to the 49ers' assertion, Code § 8.01-581.02(B)
authorizes the court to determine issues of arbitrability.
That subsection provides in pertinent part:
On application, the court may stay an arbitration
proceeding commenced or threatened on a showing that
there is no agreement to arbitrate. Such an issue,
when in substantial and bona fide dispute, shall be
forthwith and summarily tried and the stay ordered if
found for the moving party.
(Emphasis added). The 49ers contend that the phrase "agreement
to arbitrate" in the subsection means that once a party shows
that there is a valid contract between the parties and that the
contract provides for arbitration of disputes, the court must
order arbitration, leaving to the arbitrators issues of
specific claim arbitrability. The statute, however, has not
been applied to limit the trial court's authority in the manner
suggested.
In two recent cases subject to the Uniform Arbitration
Act, Code §§ 8.01-581.01 through -581.016, we have recognized
the power of trial courts to resolve issues of arbitrability.
In Trustees v. Taylor & Parrish, 249 Va. 144, 452 S.E.2d 847
(1995), the trial court ruled that the arbitration clause in
the parties' contract encompassed a dispute over a change order
and that the issues in an amended demand for arbitration were
arbitrable. Id. at 148-49, 452 S.E.2d at 849-50. Likewise, in
McMullin v. Union Land & Management Co., 242 Va. 337, 410
S.E.2d 636 (1991), the trial court ruled that a disputed claim
for compensation was outside the scope of the arbitration
clause. Id. at 341, 410 S.E.2d at 638. While this Court
reversed the trial courts' conclusions, the reversals were not
based on the trial courts' lack of jurisdiction to decide the
arbitrability issues. Rather, in those cases, the trial courts
erred in their conclusions regarding arbitrability. Trustees,
249 Va. at 155, 452 S.E.2d at 853; McMullin, 242 Va. at 342,
410 S.E.2d at 639. Thus, we state explicitly what was implicit
in those cases: Code § 8.01-581.02(B) authorizes the court to
determine whether there is an agreement to arbitrate the
specific controversy before the court, that is, to decide
questions of arbitrability.
Although the trial court is authorized by statute to
resolve issues of arbitrability, the parties by their contract
can agree that those issues be decided by the arbitrator.
Thus, we must look to the parties' contract to see if such an
agreement exists in the present case.
B. THE CONTRACT
The arbitration provision in the parties' contract in this
case does not address the specific issue of who--the court or
the arbitrator--shall determine arbitrability. In Doyle &
Russell, Inc. v. Roanoke Hospital Ass'n, 213 Va. 489, 193
S.E.2d 662 (1973), we concluded that "it is the province of the
courts to determine the threshold question of arbitrability,
given the terms of the contract between the parties." Id. at
494, 193 S.E.2d at 666. See also United Paperworkers v. Chase
Bag Co., 222 Va. 324, 327 n.1, 281 S.E.2d 807, 809 n.1 (1981).
We have also held that an arbitration clause which encompasses
all controversies "arising out of" or "related to" the contract
is very broad in its coverage. McMullin, 242 Va. at 341, 410
S.E.2d at 639. This case, however, presents an issue of first
impression: whether the absence of specific language
addressing who decides arbitrability reflects the parties'
intent to include or exclude arbitrability determinations from
the arbitrator's authority.
The 49ers assert that the general policy favoring
arbitration reflected in AT&T Technologies v. Communications
Workers of America, 475 U.S. 643, 650 (1986), and Moses H. Cone
Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1,
24-25 (1983), supports the conclusion that, in the absence of
any clear expression in an arbitration agreement to the
contrary, the issue of arbitrability is itself arbitrable and
to be resolved by the arbitrators.
In a recent case concerning the application of the Federal
Arbitration Act, 9 U.S.C. §§ 1 through 14 (1982), however, the
United States Supreme Court held that in deciding who
determines questions of arbitrability, contractual silence or
ambiguity is considered insufficient to give that authority to
the arbitrators. First Options of Chicago, Inc. v. Kaplan, ___
U.S. ___, ___, 115 S.Ct. 1920, 1924-25 (1995). As the Supreme
Court pointed out, when entering into an agreement to
arbitrate, the parties surrender the right to have a court
determine the merits of a controversy. Id. at ___, 115 S.Ct.
at 1923. Although a court may review the arbitration award
when confirmation, modification, or vacation is sought, the
grounds for such relief are limited and do not include the
merits of the award itself. Thus, whether the court or the
arbitrator decides the question of arbitrability of a dispute
"makes a critical difference" to the parties. Id.
Furthermore, the Supreme Court observed that the parties to the
contract "likely gave at least some thought to the scope of
arbitration," id. at 1924, but may not have focused on either
the "rather arcane" question of who would make that decision or
the "significance of having arbitrators decide the scope of
their own powers," id. at 1925. In light of these
considerations, and because parties cannot be compelled to
arbitrate those issues which they did not agree to submit to
arbitration, the Supreme Court concluded that, in the absence
of a clear agreement, parties should not be forced to submit
matters to arbitration which they may have contemplated would
be decided by a court. Id.
We agree with the Supreme Court's rationale and conclusion
in this regard. Furthermore, it is consistent with the
principle enunciated in Doyle & Russell that a party "cannot be
compelled to arbitrate a question which, under his agreement is
not arbitrable." 213 Va. at 494, 193 S.E.2d at 666. Thus we
hold that, in the absence of a clear agreement showing that the
parties intended that the arbitrator decide questions of
arbitrability, that question is to be resolved by the court.
Accordingly, the trial court erred in declining to resolve the
controversy relating to the arbitrability of the 49ers' second
arbitration demand and in referring that matter to the
arbitration panel for resolution. 2
2
Relying on statements made by the trial court at the May
7, 1993 hearing and in the letter opinion of the court
Although the trial court erred, WMC suggests that this
Court need not remand the case to the trial court to make a
determination on arbitrability. Rather, it contends, and we
agree, that we can determine this issue on the record before
us. Both parties agree that the issue was briefed and argued
before the trial court and the arbitration panel. The record
before us includes all necessary arbitration and trial court
proceedings. The issue has also been fully briefed in this
appeal. Accordingly, we will proceed to determine whether the
claims contained in the 49ers' second demand for arbitration
are arbitrable.
II. THE SECOND ARBITRATION DEMAND
In their second demand for arbitration, the 49ers
described the nature of the dispute as follows:
Cost of repair necessary to bring the bulkhead
to the condition demanded by the arbitrators in its
Award dated February 12, 1991.
Respondent performed none of the work, nor
supplied the Bond required by the Arbitrators . . .
On November 11, 1991, sections of the bulkhead
collapsed.
Failure to perform is breach of the contract
containing an arbitration clause, breach of
contractual warranty and breach of the guarantee in
the Award.
referring to that hearing, the 49ers maintain that the trial
court did decide the issue of arbitrability. However, a court
speaks through its orders and we presume that the orders
accurately reflect what transpired. Stamper v. Commonwealth,
220 Va. 260, 280-81, 257 S.E.2d 808, 822 (1979), cert. denied,
445 U.S. 972 (1980). The order of the trial court entered on
September 20, 1993, specifically stated that "the issue of a
failure to comply with the arbitration award is a matter for
the arbitrators who will determine the arbitrability of that
issue." Moreover, in submitting language to the court for
inclusion in its order, WMC was not "inviting error" as the
49ers assert. WMC only sought to have the trial court's ruling
accurately portrayed in the order. The trial court
subsequently chose this language as its holding.
The 49ers sought to recover the cost of repair "to bring the
structure in compliance" with the previous arbitration award,
the cost of emergency repair, property damage, and attorneys'
fees. Elaborating on their demand, the 49ers claim that WMC
breached Paragraph 3.5.1 of the construction contract which
contains the contractor's warranties against defective
construction and design of the bulkhead. The 49ers also claim
that WMC's failure to comply with the first arbitration award
breached the guarantee contained in the award and was "in and
of itself, a breach of the Contract, which required the parties
to submit their disputes to arbitration." We begin with the
consideration of the 49ers' claims regarding the breach of the
first arbitration award based on WMC's failure to comply with
its terms.
A. FAILURE TO COMPLY
Although the parties could have agreed that disputes over
the compliance with a final arbitration award would be subject
to arbitration, the contract does not expressly address the
arbitrability of such controversies. See Menorah Ins. Co. v.
INX Reinsurance Corp., 72 F.3d 218, 222 (1st Cir. 1995).
Nevertheless, the contract does describe certain attributes of
the award itself. According to the terms of the contract, the
parties agreed that the award was to be "final," and that
judgment "may be entered" on the award by a court. By allowing
a judgment to be entered on the award, it is reasonable to
assume that the parties were aware of the statutory provisions
regarding court confirmation of the award, Code § 8.01-581.09,
and providing that the court's order confirming the award can
be enforced as "any other judgment or decree," Code § 8.01-
581.012. 3 Additionally, the parties presumably knew that an
arbitrator has no power to enforce the award rendered. The
statute provides a limited time within which the parties may
ask the arbitrator to reconsider or modify the award. Code
§ 8.01-581.08. After that time, the arbitrator has no further
authority over the award and, in absence of agreement of the
parties, the arbitrator becomes functus officio. Home Oil Co.
of Hot Springs, Virginia v. Home Oil Co., 240 Va. 5, 8-9, 393
S.E.2d 188, 189-90 (1990).
We do not dispute the 49ers' assertion that ambiguity in
the scope of an arbitrability clause should be resolved in
favor of arbitrating the claim. Considering the above factors,
however, we conclude that the contract reflects the parties'
understanding that the arbitration process would end with the
arbitration award. Any further consideration of the award or
action regarding compliance with it would be undertaken in a
different forum.
The 49ers also argue that the failure to comply with the
first arbitration award is a breach of the construction
contract because the parties agreed that an arbitration award
would be binding. We reject this argument. We agree that the
purpose of compulsory arbitration is that, in lieu of taking
the matter to court, the parties will accept the arbitrators'
award as a final resolution of the controversy. That
understanding, however, does not anticipate that the only
3
While the first arbitration award at issue here was not
confirmed by a court, that fact is irrelevant to the parties'
intent at the time the contract was executed.
action a party may take is to comply with the award. The Act
clearly contemplates that a party who disagrees with an award
can file a pleading with a court to have it vacated or
modified, albeit that the grounds for doing so are limited.
Under the 49ers' reasoning, such a pleading would be a breach
of the contract because by it the parties would be seeking to
escape a binding award.
We also reject the 49ers' assertion that we should
interpret the clause, "claim or controversy arising out of or
related to" broadly as we did in McMullin, and hold that the
noncompliance with the award qualifies as a "claim or
controversy" under the contract in this case. We do not
retreat from our prior statements that an arbitration clause
like the one in issue here is very broad; however, such clauses
are not unlimited. In McMullin, we determined that the
controversy proposed for arbitration was "related to" the
agreement, and therefore arbitrable, because the litigants had
to refer to a provision of the contract to resolve the
controversy. 242 Va. at 342, 410 S.E.2d at 639.
McMullin, however, is distinguishable from the instant
case. Here, the controversy regarding WMC's noncompliance
relates solely to the terms of the first arbitration award; no
provision of the construction contract need be construed or
applied to resolve the controversy over noncompliance. Thus,
we decline to adopt the construction of the phrase "arising out
of or related to" urged by the 49ers because such a
construction is far broader than any we have previously applied
to the clause.
The 49ers' claim in their second demand for arbitration,
based on WMC's failure to comply with the terms of the first
arbitration award, is nothing more than an action seeking
compliance with the first arbitration award and damages for the
failure to comply with that award. We conclude that such an
action was not contemplated as an arbitrable controversy in the
agreement between the parties.
B. BREACH OF WARRANTY
In their second demand for arbitration, the 49ers also
claim that WMC breached the warranties contained in Paragraph
3.5.1 of the contract. In that provision, the contractor
warrants that the material and equipment furnished will be of
good quality, that the work will be free from defects, and that
the work will conform to the requirements of the contract
documents. WMC does not dispute the arbitrability of this
claim; however, WMC asserts that further arbitration of this
claim is barred by the principle of res judicata because the
49ers made the same claim in their first demand for arbitration
which was denied by the arbitrators.
Res judicata is a judicially developed doctrine designed
to end litigation and to protect the litigants from harassment.
A plea of res judicata will be sustained if the prior
adjudication was between the same parties or their privies and
a valid final judgment was entered which resolved the claim on
its merits. Bates v. Devers, 214 Va. 667, 670-71, 202 S.E.2d
917, 920-21 (1974). When parties choose to resolve their
disputes by arbitration rather than litigation, even though the
resolution reached in that process does not require the
application of legal principles, courts have applied the
doctrine of res judicata to preclude subsequent litigation on
issues resolved by validly issued arbitration awards. 1
Gabriel M. Wilner, Domke on Commercial Arbitration § 31:02, at
452-53 (1984 & Supp. 1995); Restatement (Second) of Judgments
§ 84 cmt. b (1982).
While we have not specifically addressed the applicability
of the doctrine of res judicata to an arbitration award, this
Court reviewed a trial court's dismissal of a garnishment
action based on the res judicata bar of a confirmed arbitration
award in Virginia Builders' Supply v. Brooks & Co., 250 Va.
209, 212, 462 S.E.2d 85, 87 (1995). On appeal, this Court
reversed, not because res judicata did not attach to such
awards, but because the parties to the arbitration agreement
and award were not the same parties in the garnishment
proceeding and, therefore, the elements of res judicata were
not satisfied. Id. at 213-14, 462 S.E.2d at 88.
The lack of any challenge to the trial court's ability to
bar subsequent litigation by applying the doctrine of res
judicata based on a prior confirmed arbitration award is
readily understandable. Code § 8.01-581.012 provides that a
judgment confirming an arbitration award is to be treated like
any other judgment. Such treatment would include the
application of res judicata.
While res judicata may operate to bar subsequent judicial
proceedings based on a prior confirmed arbitration award, here
WMC seeks to bar a subsequent arbitration proceeding based on
the res judicata effect of an unconfirmed arbitration award.
These factual differences do not preclude application of the
res judicata plea in this case, however. The parties have made
no distinction between a confirmed and unconfirmed award.
Therefore, we will assume, without deciding, that an
unconfirmed arbitration award is treated in the same manner as
a confirmed award for purposes of res judicata analysis. 4
The parties also do not contest the power of res judicata
to bar a subsequent arbitration proceeding. The 49ers,
however, maintain that, in the absence of a specific agreement
to the contrary, whether a prior award is given res judicata
effect on a subsequent request for arbitration is itself
arbitrable, and therefore, the trial court was correct in
referring this issue to the arbitration panel.
1. Arbitrability of Res Judicata Plea
The 49ers rely heavily on a labor arbitration case, Little
4
A number of jurisdictions apparently do not distinguish
between confirmed and unconfirmed awards for purposes of res
judicata. See, e.g., Wellons, Inc. v. T.E. Ibberson Co., 869
F.2d 1166, 1169 (8th Cir. 1989); Behrens v. Skelly, 173 F.2d
715, 720 (3rd Cir.), cert. denied, 338 U.S. 821 (1949); In re
Drexel Burnham Lambert Group, Inc. v. DBL Liquidating Trust,
161 B.R. 902, 907 (Bankr. S.D.N.Y. 1993); Monmouth Pub. Sch. v.
Pullen, 489 N.E.2d 1100, 1105 (Ill. App. Ct. 1985); Hurley v.
Fox, 587 So. 2d 1, 2 (La. Ct. App. 1991); Protocom Devices,
Inc. v. Figueroa, 545 N.Y.S.2d 527, 528 (N.Y. Sup. Ct. 1989),
aff'd, 569 N.Y.S.2d 80 (N.Y. App. Div. 1991). But see Gruntal
& Co. v. Steinberg, 854 F. Supp. 324, 337-38 (D.N.J.)
(unconfirmed arbitration award under Maryland statute has no
preclusive effect), aff'd, 46 F.3d 1116 (3d Cir. 1994); Larsen
v. Farmers Ins. Co., 909 P.2d 935, 940 (Wash. Ct. App. 1996)
(unconfirmed arbitration award under Oregon law not equivalent
to final judgment for collateral estoppel purposes). Even
though the applicable statutes specifically provide that an
arbitration award is only a separate contract between the
parties until confirmed, at least two courts have afforded an
unconfirmed award res judicata effect in a subsequent action.
Pollock v. Marx, 171 B.R. 218, 221-23 (Bankr. N.D. Tex. 1994);
Thibodeau v. Crum, 6 Cal. Rptr.2d 27, 33-34 (Cal. Ct. App.
1992).
Six Corp. v. United Mine Workers of America, 701 F.2d 26, 29
(4th Cir. 1983), for their contention that the applicability of
res judicata to a particular award is an arbitrable issue. 5
Our review indicates, however, that other jurisdictions have
concluded that a plea of res judicata is not subject to
arbitration and the court, not the arbitration panel,
determines whether a previous arbitration award operates as res
judicata or collateral estoppel on a subsequent action or
demand for arbitration. See, e.g., Clark v. Bear Stearns &
Co., 966 F.2d 1318, 1321 (9th Cir. 1992); Greenblatt v. Drexel
Burnham Lambert, Inc., 763 F.2d 1352, 1360-61 (11th Cir. 1985);
Monmouth Pub. Sch. v. Pullen, 489 N.E.2d 1100, 1105 (Ill. App.
Ct. 1985); Chattin v. Cape May Greene, Inc., 524 A.2d 841, 848
(N.J. Sup. Ct. App. Div.), cert. denied, 526 A.2d 209 (N.J.
1987); Rembrandt Indus., Inc. v. Hodges Int'l, Inc., 344 N.E.2d
383, 384 (N.Y. 1976); C & O Dev. Co. v. American Arbitration
Ass'n, 269 S.E.2d 685, 687 (N.C. App. Ct. 1980), review denied,
274 S.E.2d 227 (N.C. 1981). We believe these jurisdictions
reached the correct conclusion.
First we note that arbitration is proper in this case only
for controversies "arising from" or "relating to" the contract
between the parties. The dispute over WMC's plea of res
judicata arises from, or is related to, satisfying the elements
of this common law doctrine; it does not arise from the terms
5
Hotel Ass'n of Washington, D.C. v. Hotel & Restaurant
Employees Union, 963 F.2d 388 (D.C. Cir. 1992), also relied on
by the 49ers, did not involve the preclusive effect of a prior
labor arbitration award on a subsequent arbitration but
involved whether the decision rendered in the first arbitration
was binding on a second arbitration involving a different
employee. Id. at 389.
of the contract. Thus, it is not arbitrable.
More importantly, an arbitration panel is not generally
bound by legal principles, does not have to explain or justify
its decision, and the decision is not reviewed for legal
errors. Rather, the arbitrators are entitled to make their
decision based on what they deem to be just and equitable
within the scope of the parties' agreement. AAA Construction
Industry Arbitration Rule 43 (1993); G. Richard Shell, Res
Judicata and Collateral Estoppel Effects of Commercial
Arbitration, 35 UCLA L. Rev. 623, 633-37 (1988). Consequently,
when considering a plea of res judicata, an arbitration panel
could determine that the issues resolved in a prior arbitration
should be revisited, regardless of whether the legal elements
required for sustaining the plea were met. Allowing a plea of
res judicata to be resolved by arbitration defeats the purpose
of the judicially created doctrine -- to bring an end to the
substantive controversy and to protect the parties from re-
litigating previously decided matters.
Accordingly, we conclude that, in the absence of a clear
agreement to the contrary, a plea of res judicata is not
arbitrable. Therefore, the trial court erred in directing the
arbitration panel to determine whether res judicata barred
WMC's claim for breach of contractual warranty. However, we
will not remand this issue for determination by the trial court
because, like the issue of arbitrability discussed above, the
record before us is sufficient to resolve the issue here.
2. Application of Res Judicata to
Breach of Warranty Claim
The original arbitration demand filed by the 49ers
described the dispute as a breach of contract. The alleged
breach, as explained by the 49ers' arbitration counsel,
consisted of specific design and construction defects.
The 49ers assert that the second demand claiming breach of
warranty as a result of the damaged bulkhead was not identical
to the first, and could not have been, because the bulkhead had
not failed at the time of the first demand. Relying on Allstar
Towing, Inc. v. City of Alexandria, 231 Va. 421, 344 S.E.2d 903
(1986), the 49ers argue that, for res judicata purposes, a
cause of action is "an assertion of particular legal rights
which have arisen out of a definable factual transaction." Id.
at 425, 344 S.E.2d at 906. Thus, they assert, since the event
giving rise to the cause of action, i.e., the partial collapse
of the bulkhead, had not occurred at the time of the first
arbitration, the claims could not have been the same.
The 49ers misapply Allstar Towing. In that case the city
of Alexandria rejected the towing company's initial bid to
provide services because the company was not a registered
corporation and, therefore, was ineligible for award of the
contract. The company unsuccessfully challenged that decision.
Id. at 422-23, 344 S.E.2d at 904-05.
Thereafter, the company submitted a bid in response to the
city's second invitation to bid. The city awarded the contract
to another towing enterprise. The company filed a second
protest asserting that it met the bid requirements, but the
company receiving the contract did not. The Court in Allstar
Towing held that the company's second action was not subject to
a res judicata bar because the legal rights asserted by the
company arose from the second transaction. The second action
was not related to the first transaction in which the company's
bid was rejected because it was an unresponsive bidder. Id.
In this case, the legal rights asserted by the 49ers in
the first arbitration action were based on its contractual
right to construction of a bulkhead free of design or
construction defects. The storm damage to the bulkhead after
the first arbitration did not increase or alter the contractual
rights the 49ers acquired at the time the contract was
executed. Furthermore, no plans were altered and no work was
performed on the bulkhead between the filing of the first and
second demands for arbitration. The damages suffered as a
result of the alleged defects may have increased when the
bulkhead collapsed, but any defects in construction and design
which existed at the time of the first arbitration had not
changed at the time of the second demand for arbitration.
Furthermore, even though the first demand described only
specific defects, the doctrine of res judicata applies to all
claims which could have been brought, thereby preventing a
party from splitting his cause of action. Flora, Flora &
Montague, Inc. v. Saunders, 235 Va. 306, 310-11, 367 S.E.2d
493, 495 (1988); Bates, 214 Va. at 670-71, 202 S.E.2d at 920-
21. Here, the 49ers had engaged an engineer to evaluate the
bulkhead prior to filing its first demand for arbitration.
Their engineer reported that the design and construction of the
bulkhead was deficient. In the first arbitration, the 49ers
chose to limit the items of alleged deficient construction and
design. Having made that choice, they are not entitled to
bring forward additional items at a later date, particularly
when, as set out above, there had been no further construction
or design activity on the bulkhead between the two arbitration
demands.
The claim for breach of warranty asserted by the 49ers in
their second arbitration demand was no different than the claim
for breach of contract asserted in the first arbitration
demand. Labeling the claim a breach of warranty rather than a
breach of contract does not alter the nature of the claim.
That label is a distinction without a difference. As pointed
out by WMC, a breach of the warranty is a breach of the
construction contract. Werner Sabo, Legal Guide to AIA
Documents § 418, at 199 (3rd ed. 1989).
The record demonstrates that the first arbitration was
between the 49ers and WMC, and, as a result of that proceeding,
a valid final arbitration award was entered rejecting the
49ers' claim for breach of contract due to defective design and
construction of the bulkhead. Thus, we conclude that WMC met
its burden of proof to sustain its plea of res judicata. The
49ers' demand for arbitration of their breach of warranty claim
is barred by the first arbitration award under principles of
res judicata.
III. CONCLUSION
In summary, the contract between the parties in this case
did not specifically provide that questions of arbitrability
and res judicata be submitted to arbitration. Therefore, the
trial court erred in failing to resolve those issues and in
referring them to the arbitration panel. Furthermore, the
49ers' claims in their second demand for arbitration relating
to noncompliance with the first arbitration award are not
arbitrable and their claim for breach of warranty is barred by
res judicata. Accordingly, we will reverse the judgment of the
trial court confirming the second arbitration award and enter
judgment in favor of WMC. 6 The judgment will be without
prejudice to the parties' rights in connection with the first
arbitration award.
Reversed and final judgment.
6
In light of this disposition, we need not address WMC's
other assignments of error or the 49ers' assignment of cross-
error.