Ekins v. Wallace Associates Business Properties Group, Inc

Ekins v. Wallace Associates Business Properties Group, Inc., Case No. 971573-CA, Filed October 1, 1998. IN THE UTAH COURT OF APPEALS   ----ooOoo----

MEMORANDUM DECISION (Not For Official Publication)

Debra Ekins aka Debra A. Ekins, 

Plaintiff and Appellee, 

v. 

Wallace Associates Business Properties Group, Inc., a Utah corporation, 

Defendant and Appellant. 

Case No. 971573-CA

F I L E D (October 1, 1998)   -----  

Third District, Salt Lake Department

The Honorable Anne M. Stirba

Attorneys: John E.S. Robson and John D. Dunn, Salt Lake City, for Appellant

James C. Swindler, Salt Lake City, for Appellee -----  

Before Judges Davis, Jackson, and Orme.

JACKSON, Judge:

Wallace Associates (Wallace) appeals from an order of the Third District Court denying Wallace's motion to compel arbitration. The trial court found that Wallace waived its right to arbitrate under the standard articulated in Chandler v. Blue Cross Blue Shield, 833 P.2d 356, 360 (Utah 1992) (stating waiver "must be based on both a finding of participation in litigation to a point inconsistent with the intent to arbitrate and a finding of prejudice").

Wallace argues on appeal that it did not waive its right to arbitrate. Ekins responds that the arbitration clause does not apply to her dispute with Wallace, and argues further that even if the agreement is valid and applies to this dispute, Wallace waived its right to arbitrate.

We need not address the issue of waiver because we conclude that the arbitration provision does not apply to the dispute between Ekins and Wallace. The arbitration clause of the Independent Contractor Agreement provides that "[i]n the event of any disagreement or dispute between Salesperson [Ekins] and other salespersons under contract with Broker which cannot be settled by and between the parties involved, such matter shall be decided by arbitration . . ." (Emphasis added.) By its plain language, this clause compels arbitration of any disputes between Ekins and other salespersons.

The clause is not ambiguous, and it cannot be read to govern the dispute between Ekins and Wallace. Ekins did not agree to arbitrate disputes with Wallace. See Utah Code Ann. 78-31a-4(1) (1995) ("The court, upon motion of any party showing the existence of an arbitration agreement, shall order the parties to arbitrate."); Worthington & Kimball Constr. Co. v. C & A Dev. Co., 777 P.2d 475, 479 (Utah 1989) ("[O]ne cannot be compelled to arbitrate claims.").

Accordingly, we affirm the trial court's ruling on the ground that Ekins did not agree to arbitrate with Wallace. See DeBry v. Noble, 889 P.2d 428, 444 (Utah 1995) ("It is well-settled that an appellate court may affirm a trial court's ruling on any proper grounds, even though the trial court relied on some other ground.").

Affirmed.
 
 
 
 

Norman H. Jackson, Judge -----  

WE CONCUR:
 
 
 
 

James Z. Davis,

Presiding Judge
 
 
 
 

Gregory K. Orme, Judge