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09/09/94 SPARKS CONSTRUCTION v. STATE BUILDING

September 9, 1994

SPARKS CONSTRUCTION, INC., AND GUIN COMPANY
v.
STATE BUILDING COMMISSION



Appeal from Jefferson Circuit Court. (CV-92-5577). Jack D. Carl, TRIAL JUDGE.

Rehearing Overruled October 14, 1994, . Certiorari Denied June 30, 1995. Released For Publication December 14, 1995.

Holmes

The opinion of the court was delivered by: Holmes

HOLMES, Retired Appellate Judge

In July 1992 Sparks Construction, Inc. (Sparks), and Guin Company (Guin) filed in the Circuit Court of Jefferson County, Alabama, a petition for review of an "agency" order.

The petition stated that Sparks entered into a construction contract with the Board of Trustees of the University of Alabama for the University of Alabama at Birmingham (UAB) and that Guin performed the plumbing work on the construction project pursuant to a subcontract with Sparks. The petition also indicated that a dispute arose between Sparks and UAB regarding equitable adjustments and compensation due under the contract.

Thereafter, Sparks and UAB submitted to an arbitration hearing before the State of Alabama Building Commission (Commission). The Commission issued its opinion on September 30, 1991, and awarded Sparks compensation in the amount of $413,930 for all of its claims. Sparks requested a rehearing. The Commission replied that a rehearing would not be necessary, but it would review the award for errors in calculation. The Commission issued a letter dated May 18, 1992, correcting the errors.

As previously noted, Sparks filed its petition for review of the Commission's order in the Circuit Court of Jefferson County, Alabama. The record reveals that Guin was not a party to the arbitration between Sparks and UAB. The petition was amended to add UAB as an indispensable party-defendant.

The parties filed a joint stipulation of facts, which the trial court adopted as its findings of fact in its final judgment, wherein the trial court denied the relief requested by Sparks. The final judgment of the trial court stated in pertinent part:

"Based upon the stipulated facts, it is the opinion of the court that [Sparks] entered into a binding arbitration agreement after the dispute between the parties arose and that it is therefore bound by the results of the arbitration, there being no evidence that the arbitrator was guilty of fraud or dishonest conduct. The arbitrator was established by the contractual terms prior to the dispute, but if Sparks had objections to this procedure, it should have refused to agree to the binding arbitration and sought its judicial relief at that time."

Sparks and Guin appeal. This case is before this court pursuant to Ala. Code 1975, § 12-2-7(6).

On appeal Sparks contends that the trial court committed reversible error when it determined that the arbitration, which was conducted by the Commission, was final and binding as to the dispute between Sparks and UAB. Sparks argues that the trial court's finding that this arbitration was final and binding limits its right to seek judicial review, which is guaranteed by the Alabama Administrative Procedure Act, Ala. Code 1975, §§ 41-22-1 through -27, (AAPA).

Our review of the record reveals that article 44 of the general conditions of the contract between Sparks and UAB contained the following language:

"Except as hereinabove provided, any dispute, claim or question concerning the interpretation or meaning of the contract documents or concerning a breach of the contract shall be submitted to the Director [of the Technical Staff of the Commission] and his decision shall be final, binding and conclusive on the parties to the contract. He shall have executive authority to ...


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