# Hardy Construction Co. v. Arkansas State Highway & Transportation Department

> Supreme Court of Arkansas · May 28, 1996 · 324 Ark. 496

URL: https://www.frixlaw.com/law-library/cases/9778208

## Case

- **Full name:** HARDY CONSTRUCTION COMPANY, Inc. v. ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT
- **Court:** Supreme Court of Arkansas
- **Decided:** May 28, 1996
- **Citations:** 324 Ark. 496; 922 S.W.2d 705; 1996 Ark. LEXIS 327
- **Precedential status:** Published
- **Opinion:** Concurrence by Glaze
- **Judges:** Brown, Dudley, Glaze
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9778208

## Opinion text

Tom Glaze, Justice, concurring. I concur. While I agree to affirm, I disagree with the majority court’s assertion that appellant’s abstract is so deficient the court cannot decide whether the chancery court erred in failing to appoint an arbitrator as required under Ark. Code Ann. § § 16-108-201 — 224 (1987 and Supp. 1995). The majority opinion states that there is nothing in the abstract to indicate § 16-108-203 was argued to the chancery court or that a ruling was obtained with respect to that argument. 1 Not true.
I first point out that the chancellor’s order, as abstracted, dismissed the appellant’s action and set out findings reflecting the appellant had filed suit asking the court to appoint an arbitrator as provided under the terms of the parties’ contract. The chancellor further found the appellant was relying on § 16-108-201, et seq. She stated in her order that appellant’s action was to enforce the parties’ contract which provided for arbitration, but that certain contingencies had to occur before the court appointed a third arbitrator. She ruled those contingencies had not occurred.
The abstract further reflects that the appellee contended below that, under the parties’ agreement, the party (appellant) seeking arbitration must first exhaust all administrative remedies by first submitting the parties’ dispute for resolution to appellee’s Resident Engineer, and if not resolved by that engineer, to appellee’s Chief Engineer. Because appellant failed to exhaust its administrative remedies, appellee refused to choose an arbitrator. The chancellor agreed that, under the terms of the parties’ contract, she could not intervene to appoint a third arbitrator because the contingencies or conditions of the contract had not been met.
In sum, appellant’s abstracting of its petition with exhibits, appellee’s motion to dismiss, and the court’s order presents the essential parts of the record to determine if the chancellor was correct in refusing to appoint an arbitrator under the terms of the parties’ arbitration agreement. From the abstracted record, the chancellor was correct because appellant had not exhausted its remedies, and, therefore, under contract terms appellee was not required to appoint an arbitrator. Consequently, because these contractual prerequisites had not been met, the trial court correctly decided it could not intervene to appoint a third arbitrator. The trial court should be affirmed, but only after reaching the merits of all issues presented on appeal.
Section 16-108-203 provides as follows:
If the arbitration agreement provides a method of appointment of arbitrators, this method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails or is unable to act and his successor has not been duly appointed, the court on application of a party shall appoint one (1) or more arbitrators. An arbitrator so appointed has all the powers of one specifically named in the agreement. (Emphasis added.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9778208. Public record. Not legal advice.