Consumer Law, Warranties Contract Stipulates Arbitration

I am an architect and have a contract with the owner using the AIA B141 - Standard Form of Agreement Between the Owner and Architect. Article 7 of the contract specifically stipulates that "Claims, disputes or other matters in question between the parties to this Agreement or breach thereof shall be subject to and decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association...."

The owner has filed suit against the contractor and named me party to the suit. I have been ordered to prepare a written response to the court.

Shouldn't I just point out this article in the contract and not get involved in a detailed response to the suit at this point?

Randy Kopplin

I'm not sure that we understand the question. In what court did the owner file? I'm also not sure what you received and what it said and from whom.

The document I received is:

CITATION FOR PERSONAL APPEARANCE

filed in the District Court of Polk County, TX

first paragraph says:

NOTICE TO DEFENDENT:
YOU HAVE BEEN SUED. YOU MAY EMPLOY AN ATTORNEY. IF YOU OR YOUR ATTORNEY DO NOT FILE A WRITTEN ANSWER WITH THE CLERK WHO ISSUED THIS CITATION BY 10:00 AM ON THE MONDAY NEXT FOLLOWING THE EXPIRATION OF TWENTY DAYS AFTER YOU WERE SERVED THIS CITATION AND PETITION, A DEFLAUT JUDGMENT MAY BE TAKEN AGAINST YOU.

You may wish to enter several defenses and you might want to have an attorney draft a simple answer. There are a couple of things I'll point out knowing the little I do and without the benefit of seeing the contract.

1) You would want the court to dismiss the case, your defense being improper forum. The contract states that any disputes will be settled in arbitration, not in court.

2) You may not want to make an "appearance" for various reasons based upon a consultation with your attorney. You may not be subject to the power of that particular court. An appearance means that you consent to the jurisdiction of the court and you can contest jurisdiction.

3) You may have other defenses since you were not in contract with the owner, only the contractor and it is unclear what is the basis of suit.

4) Service may have been improper. How did you receive the citation?

I know you don't want to hear this, but it is impossible to expect an answer here, without seeing all the documentation and knowing exactly what the facts are in your case to be able to provide an adequate answer. As you can understand, it is impossible to ask a doctor for a diagnosis without being able to see or interview the patient to determine all the symptoms. Regardless, I hope the above helps.

I like your first answer. Th others really don't apply. My contract was with the owner and the owner is sueing everone.

Thanks

I'm glad you like the answer but that doesn't mean you choose one!!! To begin, he might have the ability to sue you and it could be on the basis of the actual contractual terms. I don't know. When you answer a summons you state all the reasons that could apply to knock the plaintiff out of court. The defenses are not mutually exclusive -- it's not like in a case of a dog bit you state "I do not own a dog, and in if the court finds that I do own a dog then my defense is that my dog did not bite the plaintiff." These are all different hurdles that a plaintiff must jump before the case is allowed to move further.

Actually, I think the defense of improper forum is the best one (but I know only limited facts) since it seems pretty clear that both parties agree to litigate exclusively through arbitration. Regardless, this should be done properly. The answer and early parts of the case are so important and could easily determine your outcome regardless of whether an attorney handles the case later.