                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE

           REBOUND CARE CORPORATION, ET AL. v. UNIVERSAL
                      CONSTRUCTORS, INC.

               A Direct Appeal from the Chancery Court for Davidson County
              No. 94-444-I  The Honorable Irvin H. Kilcrease, Jr., Chancellor



                    No. M1999-00868-COA-R3-CV - Decided June 13, 2000


        This case involves a dispute under a construction contract between the owner and the
contractor. The owner sued the contractor in chancery court, and the contractor’s answer, among
other things, asserted that plaintiff’s claim was subject to arbitration. Neither party demanded
arbitration, and the case continued in chancery court with discovery and other proceedings for
approximately three years, when the contractor filed a motion to dismiss or for summary judgment
premised on the owner’s failure to comply with conditions precedent in the contract. Alternatively,
the contractor moved to stay the proceedings until plaintiff submitted the claim to arbitration
pursuant to the contract. The trial court found that the contract provided for arbitration and that the
contractor had not waived its right to arbitration. The court granted the motion for summary
judgment to the extent that the proceedings in the case were stayed until the owner’s compliance
with the conditions precedent in the contract. In compliance with the court’s order, the owner
submitted the case to arbitration which resulted in an award for the contractor. Subsequently, the
trial court granted Universal’s motion to confirm the arbitration award and dismissed the owner’s
complaint with prejudice. The owner has appealed.

Tenn.R.App.P. 3, Appeal as of Right; Judgment of the Chancery Court is Vacated in Part,
Affirmed in Part and Remanded

CRAWFORD , P.J., W.S., delivered the opinion of the court, in which HIGHERS , J., and FARMER , J.,
joined.

Paul C. Ney, Jr., Gregory Mitchell, Nashville, For Appellant

Darrell G. Townsend, Derrick C. Smith, Nashville, For Appellee

                                             OPINION

       Plaintiff, Rebound Care Corporation, d/b/a Open Arms Care Corporation (Rebound), appeals


                                                 -1-
from the order1 of the chancery court dismissing its complaint against defendant, Universal
Constructors, Inc.(Universal).

         On January 3, 1994, Rebound filed its complaint against Universal.2 The complaint alleges
that in 1989 and 1990, Rebound contracted with Universal in four separate contracts for Universal
to act as the general contractor for the construction of thirty-two intermediate care facilities and four
day program service centers in several areas in Tennessee. The contracts are attached as exhibits to
the complaint and incorporated therein. The complaint avers that in July, 1991, Rebound started
learning about problems with various parts of the Nashville facility and notified Universal and others
of the problems and sought repairs. Further problems developed, and each time Universal was
notified of the problems. It was represented to Rebound that the construction was not defective, but
that Universal would investigate and recommend solutions. The complaint further avers that because
of the many problems, Rebound retained the services of a construction consultant in 1993, and in
January, 1994, the consultant completed the investigation and issued his report which detailed
construction and design deficiencies. The complaint lists substantial defects that were discovered.
The complaint alleges that Universal became aware of numerous, unauthorized deviations, allowed
same to exist, and had defects that were, in fact, concealed from Rebound, resulting in
misrepresentations and fraud on the part of Universal. The complaint further avers that Universal
took actions and made representations that caused Rebound to delay in the filing of the suit.
Rebound further alleges that Universal breached its contract by, among other things:

                a. Failing to construct the Facilities in accordance with the plans and
                specifications for the project;

                b. Failing to employ subcontractors with adequate skills and
                knowledge to execute and perform work on the Facilities in a skillful
                and workmanlike fashion and otherwise failing to ensure that the
                work was done in a skillful and workmanlike fashion;

                c. Failing to correct nonconforming work performed by Universal
                and by subcontractors under Universal’s supervision; and


        1
        The order was made final pursuant to Tenn.R.Civ.P. 54.02, since the case against one other
defendant is still pending.
        2
          The original complaint was filed against Universal and David, Stokes, Chilton
Collaborative, P.C., an architectural firm. The complaint states that the action is related to a
previously filed case in chancery court, Rebound Care Corporation, d/b/a Open Arms Care
Corporation versus Barge, Wagonner, Sumner & Cannon, et al. The trial court consolidated the
action, and on August 25, 1995, Rebound filed a Consolidated Amended Complaint against
Universal and the other named defendants in the two actions. Our references in the Opinion to the
complaint and the answer will refer to the Consolidated Amended Complaint and Universal’s answer
thereto.

                                                  -2-
               d. Failing to identify and bring to Rebound’s and/or the Project
               Architect’s attention problems with the site and construction design
               of one or more Facilities;

               e. Failing to construct the Facilities in a good faith and reasonable
               manner and in accordance with industry standards and legal
               requirements;

               f. Breaching express warranties;

               g. Breaching implied warranties of good workmanship and materials
               and of habitability;

               h. Failing to oversee and inspect construction of the Facilities in a
               good faith manner and in accordance with reasonable construction
               practices;

               i. Failing to fulfill its duty to remedy the defects made known to it;

               j. Failing to obtain written or other approval for changes to plans and
               specifications;

               k. Failing to give monetary credit to Rebound for labor, material, and
               other changes resulting in cost reductions; and

               l. Submitting false and incorrect applications for payment.

        The complaint further alleges that Universal along with the other defendants were negligent
in the work performed which resulted in damages to Rebound. The complaint also avers that
Universal was guilty of promissory fraud and fraudulent misrepresentations in commercial
transactions in the various particulars set out in the complaint. Rebound also relies upon a violation
of the Consumer Protection Act on the part of Universal.

        Universal’s answer to the complaint denies the material allegations against it and joins issue
thereon. As an affirmative defense, Universal avers that the contract between the parties provides
that any dispute should be submitted to arbitration, and that therefore the complaint should be
dismissed. Universal further relies upon the applicable statute of limitations, T.C.A. § 28-3-201 et
seq. and § 28-3-105.

        On December 16, 1997, Universal filed a motion to dismiss or for summary judgment
premised on the failure of Rebound to comply with the conditions precedent in the contracts between
the parties and the bar of the statute of limitations. In the alternative, Universal moved the court to
stay the proceedings until plaintiff properly invokes the procedure of Article 4 of the general


                                                 -3-
conditions of the contract, including submission of the matter to arbitration. The trial court entered
its order on Universal’s motion on May 20, 1998, which states in pertinent part:

                      [Rebound] entered into contracts with Universal for Universal
               to construct eight (8) group homes. The construction contracts
               between the parties were put on American Institute of Architect’s
               (“AIA”) contract forms. (AIA Form 101). Incorporated in the
               contract forms were AIA general Conditions, Document A201.

                       The AIA General Conditions, Document A201, contain a
               procedure for the resolution of disputes before suit may be filed in
               court. Ultimately, any claims must be submitted to arbitration. The
               Court finds that Rebound/MSC failed to submit the claims against
               Universal to arbitration, which is a condition precedent to pursuing
               the instant litigation against Universal, and finds that Universal has
               not waived its right to have the dispute submitted to arbitration. The
               Court makes no other findings of fact or conclusions of law in this
               matter.

                      As an alternative remedy, Universal seeks to have this case
               stayed pending plaintiff Rebound’s compliance with the conditions
               precedent set forth in the AIA contract documents.

                       On consideration of the record and Rule 56, Tenn. R. C. P.,
               the court finds that Universal’s motion for Summary Judgment is
               granted to the extent that the proceedings in the case are stayed until
               plaintiff’s Rebound’s compliance with the conditions precedent as
               provided in the AIA contract documents. The court finds it
               unnecessary to consider the remainder of Universal’s motion.

                     Universal’s motion to dismiss Rebound’s Complaint, as
               amended, is denied.

        Although objecting to arbitration, Rebound, in compliance with the trial court’s order
submitted the matter to arbitration. The arbitration resulted in an award in favor of Universal. By
order entered June 2, 1999, the trial court denied Rebound’s motion to vacate the arbitration award
and granted Universal’s motion to confirm the award and dismissed Rebound’s complaint. The
order was made final pursuant to Tenn.R.Civ.P. 54.02. Rebound has appealed and presents two
issues for review. The first issue for review as stated in Rebound’s brief is:

               1. Whether the Chancery Court erred in resolving factual disputes in
               favor of Universal, the party moving for summary judgment, and
               finding (a) that the contract between Rebound and Universal


                                                 -4-
               contained an arbitration clause and (b) that Universal did not waive
               any arbitration rights it might have had.

        In its interlocutory order leading to the arbitration proceeding, the trial court found that the
contracts between Rebound and Universal provided for arbitration of the dispute, and that Universal
had not waived that requirement. This finding by the trial court was pursuant to Universal’s motion
to dismiss or for summary judgment and was found without an evidentiary hearing. A motion for
summary judgment should be granted when the movant demonstrates that there are no genuine issues
of material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ.
P. 56.04. The party moving for summary judgment bears the burden of demonstrating that no
genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). On a
motion for summary judgment, the court must take the strongest legitimate view of the evidence in
favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all
countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), our Supreme Court
stated:

                Once it is shown by the moving party that there is no genuine issue
                of material fact, the nonmoving party must then demonstrate, by
                affidavits or discovery materials, that there is a genuine, material fact
                dispute to warrant a trial. In this regard, Rule 56.05 [now Rule 56.06]
                provides that the nonmoving party cannot simply rely upon his
                pleadings but must set forth specific facts showing that there is a
                genuine issue of material fact for trial.

Id. at 21l (citations omitted) (emphasis in original).

         Summary judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.
1995). Since only questions of law are involved, there is no presumption of correctness regarding
a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our review of the
trial court’s grant of summary judgment is de novo on the record before this Court. Warren v. Estate
of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

        Rebound asserts that the contract is ambiguous and there is no proof that the parties intended
for the general condition to be a part of the contract. Rebound states in its brief: “given the
extensiveness and potential significance of so many of the provisions of the General Conditions –
and the lack of necessity of these provisions, the redundancy, and the conflicts with the other terms
of the contract – it is unreasonable for the Chancery Court to assume that the parties intended such
a substantial modification of the contracts absent negotiation and absent Universal’s supplying the
document as part of the contract documents. At minimum, a jury question was presented as to
whether the parties intended to incorporate into their contracts none, all, or part of the General
Conditions and, if not, whether such incorporation would have been reasonable under the
circumstances.”


                                                  -5-
       In Warren v. Metropolitan Gov’t of Nashville & Davidson County, 955 S.W.2d 618 (Tenn.
Ct. App. 1997), this Court discussed the role of a court in interpreting a contract:

                 Courts are to interpret and enforce the contract as written, according
                 to its plain terms. Petty v. Sloan, 197 Tenn. 630, 277 S.W.2d 355,
                 358 (1955); Home Beneficial Ass’n v. White, 180 Tenn. 585, 177
                 S.W.2d 545, 546 (1944). We are precluded from making new
                 contracts for the parties by adding or deleting provisions. Central
                 Adjustment Bureau, Inc. v. Ingram, 678 S.W.2d 28, 37 (Tenn.
                 1984); Shell Oil Co. v. Prescott, 398 F.2d 592 (6th Cir. 1968). When
                 clear contract language reveals the intent of the parties, there is no
                 need to apply rules of construction. An ambiguity does not arise in
                 a contract merely because the parties may differ as to interpretation
                 of certain of its provisions. Oman Construction Co. v. Tennessee
                 Valley Auth., 486 F.Supp. 375 (M.D. Tenn. 1979). A contract is
                 ambiguous only when it is of uncertain meaning and may fairly be
                 understood in more ways than one; a strained construction may not
                 be placed on the language used to find an ambiguity where none
                 exists. Empress Health and Beauty Spa, Inc. v. Turner, 503 S.W.2d
                 188, 190-91 (Tenn. 1973). We are to consider the agreement as a
                 whole in determining whether the meaning of the contract is clear or
                 ambiguous. Gredig v. Tennessee Farmers Mut. Ins. Co., 891
                 S.W.2d 909, 912 (Tenn. Ct. App. 1994). If a contract is plain and
                 unambiguous, the meaning thereof is a question of law for the court.
                 Petty v. Sloan, 277 S.W.2d at 358.

Id. at 622-23.

        Each of the four AIA contracts at issue is entitled “Standard Form of Agreement Between
Owner and Contractor” and provides on page 1: “[t]he 1987 edition of AIA Document A201,
General Conditions of the Contract for Construction, is adopted in this document by reference. Do
not use with other general conditions unless this document is modified.”

       The General Conditions of the Contract for Construction - 1987 Edition states in paragraph
3 Arbitration: “[t]he A201 document incorporates ARBITRATION according to the Construction
Industry Arbitration Rules of the American Arbitration Association.” In addition, in article 9 of the
contracts, the General Conditions are specified as the General Conditions for Construction, AIA
Document A201, 1987 Edition.

        The contracts on which Rebound has filed suit clearly and specifically state that the General
Conditions form a part of the contract and there appears to be no ambiguity in the provision for
arbitration and the other provisions of the contract. The chancery court correctly found that the
contracts involved in this case provide for arbitration.
        In this interlocutory order, the trial court also ruled that Universal had not waived the

                                                  -6-
arbitration provisions of the contracts. Tennessee courts have recognized the value of arbitrating as
an alternative to litigation. In Arnold v. Morgan Keegan & Co., 914 S.W. 2d 445 (Tenn. 1996), our
Supreme Court stated:

               [a]rbitration is attractive because it is a more expeditious and final
               alternative to litigation.

                       The very purpose of arbitration is to avoid the courts insofar
               as the resolution of the dispute is concerned. The object is to avoid
               what some feel to be the formalities, the delay, the expense and
               vexation of ordinary litigation. Immediate settlement of controversies
               by arbitration removes the necessity of waiting out a crowded court
               docket....

Arnold, 914 S.W.2d at 449 (quoting Boyd v. Davis, 127 Wash.2d 256, 897 P.2d 1239, 1242
(1995)(en banc) (citation omitted)).

        T.C.A. § 29-5-303 (1999 Supp.) enables courts to make a summary determination in certain
instances as to whether a party is entitled to arbitration. Upon the application of a party for a
determination of whether there is an agreement to arbitrate, T.C.A. § 29-5-303 (a) provides that
from the denial of an existence of an agreement to arbitrate, the court shall proceed summarily to a
determination of the issue so raised. T.C.A. § 29-5-303 (b) provides that the court may stay an
arbitration proceeding when there is no agreement to arbitrate and may try such an issue summarily.
The trial court in the instant case found on motions presented that there was an agreement to
arbitrate, and we have noted that the trial court correctly made this determination in the summary
proceeding. The trial court also determined summarily that there had been no waiver of this
contractual provision.

       Waiver is an intentional relinquishment of a known right. Baird v. Fidelity-Phenix Fire Ins.
Co., 178 Tenn. 653, 162 S.W.2d 384 (1942). In Baird, the Court said:

                      In the opinion of the Supreme Court of Massachusetts, in
               Farlow v. Ellis et al., 15 Gray 229, 81 Mass. 229, at page 231,
               dealing with a contract of sale, occurs this pertinent statement of the
               doctrine of waiver:

                               When there is a condition made at [or in] the
                       contract of sale favorable to the vendor, and solely for
                       his benefit, he may, if he choose, [or elect], waive it,
                       and treat the contract as if no such condition had been
                       embraced in it. Waiver is a voluntary relinquishment
                       or renunciation of some right, a foregoing or giving up
                       of some benefit or advantage, which, but for such
                       waiver, he would have enjoyed. It may be proved by

                                                 -7-
                      express declaration; or by acts and declarations
                      manifesting an intent and purpose not to claim the
                      supposed advantage; or by a course of acts and
                      conduct, or by so neglecting and failing to act, as to
                      induce a belief that it was his intention and purpose to
                      waive.

Id. at 389.

        In Koontz v. Fleming, 117 Tenn. App. 1, 65 S.W.2d 821 (1933), this Court stated:

                       “Evidence of Waiver –1. In General. Waiver is a matter of
               fact to be shown by the evidence. It may be shown by express
               declarations manifesting an intent and purpose not to claim the
               supposed advantage, or it may be shown by a course of acts and
               conduct, and in some cases will be implied therefrom. It may also be
               shown by so neglecting and failing to act as to induce a belief that
               there is an intention or purpose to waive. Proof of express words is
               not necessary, but the waiver may be shown by circumstances, or by
               a course of acts and conduct which amounts to an estoppel.

                      “2. Burden of Proof. The burden is upon the party claiming
               the waiver to prove it by such evidence as does not leave the matter
               doubtful or uncertain; but he is only required to prove it by the
               preponderance of evidence, as in other civil actions.

                      “3. Weight and Sufficiency. It is also necessary that the acts,
               conduct, or circumstance relied upon should make out a clear case of
               waiver.”

Id. at 824-825 (quoting 40 Cyc.., 267).

        In Prewitt v. Bunch, 101 Tenn. 722, 50 S.W. 748 (1899), our Supreme Court stated:

               To constitute an abandonment or waiver, there must be a clear,
               unequivocal, and decisive act of the party, showing a determination
               not to have the benefit in question, with a full knowledge of his rights
               in the premises. Gentry v. Gentry, 1 Sneed, 87; Traynor v. Johnson,
               1 Head. 52; Masson v. Anderson, 3 Bax., 290; Schouler’s Dom. Rel.,
               Sec. 189.

Id. at 742.



                                                 -8-
        Our Supreme Court has noted that the right to arbitration can be waived under the equitable
principles of estoppel, laches, or waiver. See Cavalier Ins. Corp. v. Osmond, 538 S.W.2d 399, 405
(Tenn. 1976).

         Rebound has cited in his brief numerous cases holding that under the specific facts involved,
the waiver of the right to arbitrate has been shown. On the other hand, Universal has cited in its brief
numerous cases holding that under the specific facts involved, the waiver of the right to arbitrate has
not been shown, or, in some case, if there has been an waiver, there was no prejudice to the other
party. We see no use or purpose in prolonging this opinion to discuss these particular cases, since
each case must be decided on the basis of its particular facts. In Annotation, Defendant’s
Participation in Action as Waiver of Right to Arbitration of Dispute Involved Therein, 98 ALR3d
771, it is stated:

                         In general, even in those jurisdictions where a contract for
                arbitration is irrevocable, the right to arbitration under the contract
                may be waived either by express words or by necessary implication,
                for example, where the conduct of a party clearly indicates an intent
                to waive the right to arbitrate. In those cases involving the issue of
                whether the defendant’s participation in an action constitutes a waiver
                of the right to arbitrate the dispute involved therein, no general rules
                are readily apparent for determining waiver other than the general
                adherence by the courts to the principle that waiver is to be
                determined from the particular facts and circumstances of each case,
                or other than the rule, applied by the courts in some recent cases, that
                it is the presence or absence of prejudice, and not the inconsistency
                of the defendant’s conduct, which is determinative of the issue of
                waiver of the right to arbitration.

         In the instant case, there are disputes as to material facts and disputes as to inferences to be
drawn from the material facts. Rebound’s initial complaint was filed in 1994. While Univeral’s
answer stated that the contract required arbitration, there was no demand made for arbitration at that
time. A demand for arbitration was finally made alternatively to a motion for summary judgment
filed December 16, 1997. In the meantime, Universal participated in the litigation process. The
record reflects that Universal did not demand arbitration, but merely included that as an affirmative
defense in its answer and then proceeded to answer the complaint in its entirety. Universal
participated in the discovery proceedings and responded to discovery requests from Rebound.
Universal benefitted from the production of documents and other discovery proceedings and
participated in the scheduling orders of the court. Universal only sought to compel arbitration after
the litigation had been going on for over three years. When the matter was submitted to arbitration
pursuant to the court’s order, Universal’s primary defense was the untimeliness of the arbitration
proceeding brought about by Rebound’s failure to file the arbitration at an earlier date. Of particular
significance is that in April of 1995, Universal’s attorney requested an extension of time within
which to respond to Rebound’s discovery request. There is evidence that a request for an extension


                                                  -9-
of time was for the express purpose of making the determination of whether Universal would
demand arbitration or not. A letter dated April 28, 1995, from Universal’s counsel to one of
Rebound’s lawyers, states:

               Gregory Mitchell
               Doramus & Trauger
               The Southern Turf Bldg.
               222 Fourth Ave. North
               Nashville, TN 37219

                                       Re: Rebound Care

               Dear Greg:

                       You should check with your boss before filing motions to
               compel. I spoke with Jim this morning and explained why no
               answers had been filed. I explained that we had been considering a
               motion to compel arbitration, a copy of which I was planning to file
               yesterday, but that Universal had not made the final decision on
               whether to insist on arbitration or not. Jim agreed to an extension,
               noted that he was very tied up with the Earthman matter, and
               suggested that I check with Universal and determine how much time
               was needed. He indicated he would agree to an order allowing a
               reasonable amount of additional time. Much to my surprise, someone
               hand delivered a motion to compel along with a certification that you
               had made a good faith effort to resolve the matter. To my knowledge,
               the only communication I received from you was a letter dated a week
               ago demanded answers.

                       Please strike the motion. If you have any questions feel free
               to contact me.

                                       Very truly yours,


                                       BOULT, CUMMINGS, CONNERS & BERRY
                                       By: H. Frederick Humbracht, Jr.

         It further appears from the record that by August of 1995, the discovery requests had not been
answered, and counsel for Rebound wrote a letter to Universal’s counsel on August 21, 1995, and
it states:
                  H. Frederick Humbracht, Jr., Esq.
                  Boult, Cummings, Conners & Berry


                                                -10-
                414 Union Street, Suite 1600
                Nashville, TN 37219

                                Re: Rebound Care Corporation d/b/a Open
                                Arms Care Corporation v. Barge, Waggoner
                                Sumner and Cannon, Incorporated, et al
                                Docket No. 94-444-I

                Dear Rick:

                        We need Universal’s answers to interrogatories to move this
                case along. As you know, these answers were due several months
                ago, but we delayed in filing a motion to compel because you
                indicated that Universal was still deciding how to proceed. We
                believe that we have provided ample time for Universal to examine
                the case, and, therefore, if Universal has not answered the
                interrogatories by September 5, 1995, we will file a motion to compel
                these answers. We cannot agree to any further extensions of time in
                which to respond.

                        Please call Paul Ney or me if you have any questions.

                                        Sincerely yours,

                                        Gregory Mitchell

         The record further indicates that Universal thereafter participated in the litigation process and
filed its motion which alternatively sought arbitration on December 16, 1997.

         We have not exhaustively related the record, because the above is sufficient to show that
there are disputed issues of material fact or disputed inferences to be drawn from the facts as to
whether there was a waiver of the right to arbitrate. Under these circumstances, the trial court’s
summary disposition of the waiver was error, and the case must be remanded for further proceedings
in that regard.

        Although the case is being remanded for further proceedings concerning the waiver issue,
we feel that we should in the interest of judicial economy consider the second issue, which is stated:

                2. Whether the arbitration panel denied Rebound its right under
                T.C.A. § 29-5-306 to a proper evidentiary hearing on the claims and
                defenses at issue in the proceeding.

        Rebound asserts that the trial court erred in confirming the award of the arbitrators and


                                                  -11-
denying Rebound’s application to vacate the award. Rebound argues that the trial court should have
vacated the award pursuant to T.C.A. § 29-5-313 (a)(4)(Supp. 1999) which states in pertinent part:
“The arbitrators . . . refused to hear evidence material to the controversy or otherwise so conducted
the hearing, contrary to the provisions of § 29-5-306 as to prejudice substantially the rights of a
party.” Rebound asserts that it had witnesses to testify, and the panel refused to hear such testimony.
Rebound does not point out in its brief, nor have we found in the record, that Rebound requested and
was denied the right to put on any proof in the arbitration proceeding. There is simply nothing in
the record to indicate that Rebound was denied its right. Therefore, the trial court did not err in
confirming the award and denying Rebound’s application to vacate the award.

        Accordingly, the order of the trial court holding that Universal did not waive the right to
arbitration dismissing Rebound’s complaint is vacated. The order of the trial court in all other
respects is affirmed. The case is remanded to the trial court for such other proceedings as are
necessary consistent with this Opinion. Costs of appeal are assessed one-half to Rebound Care
Corporation and one-half to Universal Constructors, Inc.




                                                 -12-
