Scoville Realty, Inc. v. Myers

OPINION ON REHEARING FRIEDLANDER, Judge. In a published opinion, this court affirmed the trial court’s determination that a dispute between the appellants and the appellees should be submitted to arbitration before the Indiana Association of Realtors (IAR). See Scoville Realty, Inc. v. Myers, 694 N.E.2d 1152 (Ind.Ct.App.1998). We refer the reader to our prior opinion for a recitation of the facts. Upon petition for rehearing, Scoville contends that our previous opinion was in error in several respects. We will address only one of those contentions. In the original appeal, Scoville argued that the trial court erred in ordering that the matter be resubmitted to arbitration before IAR after the original arbitrator, the Elkhart County Board of Realtors (ECBOR), determined that it was not qualified to arbitrate because of the legal complexity of the subject matter. Scoville argued that Part IV § 29 of the Code of Ethics and Arbitration Manual called for automatic termination of the obligation to arbitrate upon ECBOR’s conclusion that the matter was too complex. We could not address the relevance of Part IV § 29 in that regard because it was not included in the record. Upon petition for rehearing, Scoville informs this court that it had inadvertently misidentified the provision in ques [386] tion. In fact, Scoville intended to refer our attention to Part V § 29. That provision is in the record and we will address the argument on the merits. Part Y § 29 states, in pertinent part: If either the Grievance Committee or the arbitration panel selected in the manner hereinafter provided determines that because of the amount involved or the legal complexity of the controversy the dispute should not be arbitrated, the arbitration shall automatically terminate unless either of the parties to the controversy appeals the decision to terminate the proceedings to the Board of Directors within twenty (20) days of the date of notice that the Grievance Committee or the arbitration panel declined to continue the proceeding. Record at 108. Scoville contends that, according to § 29, if ECBOR finds that a grievance is too legally complex to arbitrate, arbitration automatically terminates. We agree that such is the meaning of the provision in question. We disagree, however, with Sco-ville’s assertion that ECBOR decided that the grievance was too complex for arbitration. ECBOR did not determine that the matter should not be arbitrated. Rather, ECBOR appears to have decided that the legal complexity of the dispute placed it beyond that body’s ability to arbitrate. Such, however, did not constitute a finding that the matter was too complex for resolution by arbitration. To the contrary, it referred the matter to IAR. Accordingly, the condition triggering the mandatory termination of arbitration, as set out in Part V § 29, did not occur. The trial court did not err in this regard. Subject to the foregoing comments, Sco-ville’s petition for rehearing is denied. KIRSCH, J., concurs. SULLIVAN, J., dissents with separate opinion.