                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                 ________________________________________

CUSTOM BUILT HOMES BY
                                                                  FILED
ED HARRIS, A DIVISION OF                                           January 10, 2000
PROFESSIONAL AUTOMOTIVE,
INC.,                                                             Cecil Crowson, Jr.
                                                                 Appellate Court Clerk
      Plaintiff-Appellee,
                                                  Williamson Chancery No. 23838
Vs.                                               C.A. No. M1998-00042-COA-R3-CV

JOHN MCNAMARA and MARY
MCNAMARA,

      Defendants-Counter-Plaintiffs,
      Third-Party Plaintiffs-Appellants,

EDWARD E. HARRIS and PROFESSIONAL
AUTOMOBILE, INC.,

      Third-party Defendants-Appellees.
_____________________________________________________________________

           FROM THE WILLIAMSON COUNTY CHANCERY COURT
         THE HONORABLE HENRY DENMARK BELL, CHANCELLOR




                            Robert H. Plummer, Jr. of Franklin
                                      For Appellees

             Ernest W. Williams and Dana C. McLendon III of Franklin
                                 For Appellants




                             AFFIRMED AND REMANDED

                                      Opinion filed:




                                                                  W. FRANK CRAWFORD,
                                                                  PRESIDING JUDGE,W.S.


CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE
       This appeal involves the breach of a residential construction contract, and

particularly the applicability of arbitration for resolution of disputes. Defendants and

counter-plaintiffs, John McNamara and Mary McNamara, appeal the trial court’s order

denying their motion to confirm an arbitrator’s award.

       The pleadings are somewhat perplexing as initially evidenced by the unusual

designation of the plaintiff - Custom Built Homes by Ed Harris, a division of Professional

Automotive, Inc. The complaint alleges that plaintiff and defendants, the McNamaras,

entered into a contract for plaintiff to construct their residence. Plaintiff avers that the

defendants have breached the contract and seeks the balance due thereon for

plaintiff’s performance. Plaintiff seeks an attachment of the property and sale pursuant

to a mechanic’s lien.

       Defendants’ answer admits the contract with plaintiff, denies the material

allegations of the complaint and avers that plaintiff breached the contract and is

indebted to them. Defendants also raise as a defense that the contract calls for

arbitration for resolution of any disputes between the parties.

       By counter-complaint, defendants seek recovery of damages from plaintiff for

various breaches of the contract. In addition thereto, defendants’ pleading includes a

“third-party complaint” against the plaintiff wherein the defendants again seek damages

from plaintiff for alleged breach of the construction contract.

       Defendants’ third party complaint pleading is somewhat puzzling to the Court.

It would appear that defendants’ claim against the plaintiff is a compulsory counter-

claim pursuant to Tenn.R.Civ.P. 13.01, as it does arise out of the same transaction or

occurrence that is the subject matter of the plaintiff’s claim. Third party practice is

covered by Tenn.R.Civ.P. 14, and it provides that a defendant, as a third party plaintiff,

may cause a summons and complaint to be served upon a person “not a party to the

action who is or may be liable to the third party plaintiff for all or part of the plaintiff’s

claim against him.” The so-called “third party complaint” in the instant case does not

come within Rule 14. Therefore, we will consider the case as a complaint from plaintiff

and an answer and counter-complaint by defendants.

       Over a year after the lawsuit was filed, defendants filed a “Motion To Dismiss



                                              2
Complaint And For Order Of Reference To Professional Arbitrator Or, In The

Alternative, For An Order Of Reference To Arbitration Pursuant To Rule 31.” Plaintiff

filed a response to the motion in which it is averred that there is no binding agreement

for arbitration, because the paragraph referring to arbitration was not individually

initialed or signed by the parties.     Such additional signing is required when the

agreement involves a residence, pursuant to T.C.A. § 29-5-302. Plaintiff requests the

Court to deny the alternative relief sought by defendants and proceed with the trial of

the cause. Plaintiff also filed a motion for a scheduling order in an effort to move this

case to trial. On September 23, 1997, the trial court entered an order disposing of the

pending motion. The order itself is somewhat confusing. The Order states:

                      This cause came before the Court on August 25,
              1997, on Defendants’ Motion for Protective Order,
              Defendants’ Motion to Dismiss Complaint and for Order of
              Reference to Professional Arbitrator or, in The Alternative,
              For an Order of Reference Pursuant to Rule 31, and
              Plaintiffs’ Motion for a Scheduling Order, and the Court
              having considered said Motions, Plaintiffs’ Answer to
              Defendants’ Motion to Dismiss, the Affidavits of the parties,
              arguments of counsel and the entire record in this cause,
              it is hereby ORDERED as follows:

              1. T.C.A. § 29-5-102 is not unconstitutional and Plaintiff
              and third Party Defendants are not entitled to the benefit of
              the statute in this case.

              2. All the claims between the parties in this case are
              hereby referred pursuant to the provisions of Rule 31 of the
              Rules of the Tennessee Supreme Court.

              3. William S. Russell, retired Judge, is hereby appointed
              as the rule 31 dispute resolution neutral in this case and
              the entire case is referred to him for negotiated settlement
              between the parties.

              4. Discovery pursuant to the Tennessee Rules of Civil
              Procedure is hereby stayed pending the referral of this
              matter to William S. Russell, retired Judge.

              5. All other matters before the Court are expressly
              reserved pending said referral.

       Although the court refers to T.C.A. § 29-5-102, in paragraph 1, it appears that

the court meant to refer to § 29-5-302, but we cannot determine what the court meant

by the remainder of the above-quoted paragraph. In any event, it appears that the trial

court is denying the effort by defendants to compel arbitration, and that the justification

therefor is the requirement in T.C.A. § 29-5-302 that there be an independent signing


                                            3
or initialing of the part of the agreement providing for arbitration.

       On December 9, 1997, the “arbitrator’s judgment” was filed in the cause and

recites:

                     This cause came on to be heard under an
              agreement that the issues be submitted for binding
              arbitration before the undersigned professional arbitrator,
              retired Judge William S. Russell, at his chambers at 738
              North Main Street, Shelbyville, Tennessee, on December
              3, 1997.

                             *              *              *

       That order found that both parties breached the contract, and both parties

sustained damages. After a set-off, the McNamaras were awarded $29,507.00 in

damages, and plaintiff was ordered to release the lien on the property.

       On December 9, 1997, plaintiff filed three motions: a motion to require the

arbitrator to be specific as to his calculations for damages on behalf of the parties; a

motion for the court to require the arbitrator to consider additional proof from the

plaintiff; and a motion to modify the judgment of the arbitrator.

       Also, on December 9, 1997, defendants filed a motion to confirm the arbitrator’s

award. After considering plaintiff’s pending motions, the court, on July 13, 1998,

entered an agreed order requiring the arbitrator to be more specific concerning his

calculations regarding damages and to specify explicitly against which party judgment

was entered. By letter filed in the cause July 27, 1998, the arbitrator noted that he had

destroyed his notes on the matter but was convinced that his conclusions were correct

and declined to make any further clarification of the order. On September 8, 1998, the

court entered an order denying confirmation of the arbitration award, which we quote:

                      This matter came before the Honorable Henry
              Denmark Bell on August 17, 1998 upon the Defendant’s
              motion to confirm the judgment of the Arbitrator and the
              Court’s own motion for review. Upon hearing argument of
              Counsel and the record as a whole, it appears to the Court
              that the parties orally agreed upon arbitration in this matter
              after the Court had referred this matter for mediation. All
              parties agree that there was no written agreement
              complying with T.C.A. 29-5-101 et seq. Further, the
              Plaintiff has indicated that the agreement to arbitrate was
              with the limitation that the Arbitrator would allow the Plaintiff
              to bring in expert witnesses, if necessary, and that the
              judgment was apparently issued without this limitation
              being fulfilled. The Court views this process as a failed
              mediation.


                                                4
              THEREFORE, it is hereby ORDERED, ADJUDGED AND
              DECREED that the Court does not confirm the judgment of
              the mediator and this matter is to be placed back on the
              Court’s docket.

       The defendants have appealed and present only one issue for review: whether

the trial court erred in declining to confirm the arbitrator’s award.

       The Uniform Arbitration Act was passed by the legislature in 1983 and is codified

as T.C.A. Sec. 29-5-301--Sec. 29-5-320 (Supp.1999). T.C.A. Sec. 29-5-302 (Supp.

1999) provides:

              29-5-302.            A g r e e m e n ts   to   submit      to
              arbitration--Jurisdiction.--(a) A written agreement to submit
              any existing controversy to arbitration or a provision in a
              written contract to submit to arbitration any controversy
              thereafter arising between the parties is valid, enforceable
              and irrevocable save upon such grounds as exist at law or
              in equity for the revocation of any contract; provided,
              however, that for contracts relating to farm property,
              structures or goods, or to property and structures utilized
              as a residence of a party, the clause providing for
              arbitration shall be additionally signed or initialed by
              the parties.

              (b) The making of an agreement described in this section
              providing for arbitration in this state confers jurisdiction on
              the court to enforce the agreement under this part and to
              enter judgment on an award thereunder.

(emphasis added.)

       T.C.A. Sec. 29-5-104 (Supp 1999) requires a written agreement as to the

conditions of arbitration. It is undisputed that the clause providing for arbitration in the

contract between the parties was not additionally signed or initialed by the parties;

therefore, there is no binding agreement to arbitrate in the contract. The defendants

contend, however, that the parties orally agreed to binding arbitration and participated

in the arbitration and, therefore, should be bound by the agreement. Plaintiff does not

dispute that he agreed to binding arbitration, but, with the proviso that he would be able

to submit proof from experts if that become part of the issues. It is significant that after

making this assertion the defendants filed an affidavit setting out that there was an

agreement for binding arbitration made before the arbitrator. Noteworthy in the affidavit

is the absence of a denial of plaintiff’s assertion that the agreement was conditioned

upon plaintiff’s being able to put on additional proof in the arbitration proceeding. We

have no transcript nor statement of the evidence concerning the proceeding before the

                                             5
arbitrator or the proceedings before the court. However, the trial court’s order denying

confirmation of the award indicates the lack of a specific understanding as to the

stipulation of the parties.   Needless to say, this case presents a rather bizarre

procedural history, and based upon the record before us, we find that the trial court did

not err in denying the confirmation of the arbitrator’s “award.”

       Accordingly, the order of the trial court is affirmed. This case is remanded to the

trial court for such further proceedings as may be necessary. Costs of the appeal are

assessed against the defendants-appellants, John McNamara and Mary McNamara.

                                                  ______________________________
                                                  W. FRANK CRAWFORD, P.J., W.S.


CONCUR:


_________________________________
ALAN E. HIGHERS, JUDGE



_________________________________
DAVID R. FARMER, JUDGE




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