Singh v. Jensen

Singh v. Jensen

IN THE UTAH COURT OF APPEALS

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Jeff Singh and Ann Singh,
Plaintiffs and Appellees,

v.

Juanita B. Jensen and Richard M. Jensen
dba R.M. Jensen Construction Co.,
Defendants and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020324-CA

F I L E D

(April 24, 2003)
 

2003 UT App 118

 

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First District, Brigham City Department

The Honorable Ben H. Hadfield

Attorneys: Richard M. Jensen, Brigham City, Appellant Pro Se

Bryce M. Froerer, Ogden, for Appellees

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Before Judges Billings, Bench, and Thorne.

PER CURIAM:

This case is before the court on a motion to dismiss and a suggestion of mootness filed by Appellees Jeff and Ann Singh.

By a memorandum decision dated September 6, 2002, this court allowed "the appeal to continue only insofar as it challenges the denial of the Motion to Arbitrate" and dismissed the remainder of the appeal because it was not taken from a final appealable judgment. See Singh v. Jensen, 2002 UT App 286 (per curiam). Utah Code Ann. § 78-31a-19(1) (2002) allows an appeal of right from an order denying a motion to compel arbitration. As a result, the only remaining issue before this court is whether the district court erred in ruling that Appellant Richard M. Jensen had waived any right to arbitrate under the parties' contract. Even if Jensen is ultimately successful on appeal, his remedy would be limited to obtaining an order requiring the parties to submit their dispute to arbitration.(1)

Shortly after issuance of our September 6, 2002, memorandum decision, the Singhs agreed to arbitrate and sought dismissal of the appeal as moot. The Singhs have now filed a motion to dismiss, representing that they (1) "have attempted to set arbitration, but Jensen now refuses," (2) have suggested a possible arbitrator; and (3) "continue to be willing to select an arbitrator and to engage in arbitration in accordance with the agreement." In sum, the Singhs contend that they "have done all they can do to see that arbitration occurs, and should not be penalized by Jensen's refusal to cooperate." We agree.

The contract between the Singhs and R.M. Jensen Construction was prepared by, or on behalf of, Appellant Richard Jensen. It provides, in relevant part, that "[a]ny disputes arising out of or related to this Contract shall be arbitrated under the rules of the American Arbitration Association." Jensen initiated this appeal to challenge both an order denying a motion to arbitrate and a default judgment that was not final because the court had not yet determined damages. This court dismissed that portion of the appeal challenging the nonfinal default judgment, but allowed the appeal from the denial of the motion to arbitrate to continue, as authorized by statute. Once the Singhs indicated their willingness to arbitrate, it was incumbent upon Jensen to take steps to implement arbitration. Furthermore, when the Singhs took further steps to initiate arbitration, Jensen should have responded in good faith to facilitate arbitration. At each juncture, Jensen has merely objected to the Singhs' filings without admitting or denying the accuracy of the representations. If Jensen no longer is willing to arbitrate, he must dismiss the appeal to allow the case to proceed in district court. Jensen's actions demonstrate a strategy to delay resolution of the case.

The only issues before this court concern whether the district court erred in refusing to order arbitration. Accordingly, Jensen's refusal to cooperate in the Singhs' efforts to facilitate arbitration renders moot the only issue before this court.

We dismiss the appeal from the order denying Jensen's motion to arbitrate as moot and remand the case to the district court for determination of damages and entry of a final judgment. Our disposition is without prejudice to a timely appeal taken from final judgment, except insofar as any subsequent appeal seeks to again challenge the district court's denial of the motion to arbitrate.

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Judith M. Billings,

Associate Presiding Judge

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Russell W. Bench, Judge

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William A. Thorne Jr., Judge

1. Jensen also sought extraordinary relief in this court requiring the district court to rule on pending motions, including a "renewed" motion to compel arbitration that duplicates the relief sought on appeal. This court denied the petition. See Singh v. Jensen, 2003 UT App 73 (per curiam).