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Moran v. Carey Limosine

District of Columbia Court of Appeals

September 02, 1999


Before Schwelb, Ruiz and Reid, Associate Judges.

The opinion of the court was delivered by: Ruiz, Associate Judge

Appeal from the Superior Court of the District of Columbia (Hon. Stephen F. Eilperin, Trial Judge)

Argued January 14, 1999

This appeal arises from a trial court order granting the motion of appellees, Carey Limousine D.C., Inc. and Carey International, Inc., to stay litigation commenced by appellant, Shirley Moran, pending arbitration. On appeal, Moran argues that the trial court erred in ruling that the arbitration clause was binding and referring all of her claims to arbitration. Because the trial court's order is not final, we dismiss for lack of jurisdiction.

On June 30, 1994, Shirley Moran, Carey Limousine D.C., Inc. and its parent company, Carey International, Inc., (Carey) entered into an asset purchase agreement in which Moran sold her limousine business to Carey in exchange for twenty thousand dollars plus certain commissions and bonuses to be determined by a formula outlined in the written agreement. The agreement contained an arbitration clause which stated in pertinent part:

"Seller [Moran] shall have the right to review Purchaser's [Carey's] determination of the amount due or not due for any Anniversary Year by giving Purchaser written notice no later than thirty (30) days following receipt of the calculation statement for such Anniversary year. If the parties cannot resolve any differences, the matter shall be referred to a firm of certified public accountants to be mutually agreed upon (the "Accountants"), who shall resolve any differences. The decision of the Accountants shall be final and shall be binding on all parties."*fn1

On June 2, 1997, after numerous informal attempts to resolve the dispute over the amount of compensation she was owed by Carey, Moran formally requested an accounting from Carey, and proposed an independent accountant to arbitrate the dispute. Moran received no response to this request and, on August 15, 1997, she filed a complaint against both Carey Limousine, D.C., Inc. and Carey International, Inc. alleging breach of contract, fraud, gross negligence, tortious interference with a contractual relationship, and requesting an accounting. Carey responded by moving to dismiss or stay the litigation pending arbitration. On October 23, 1997, the trial court determined that the dispute was arbitrable and issued an order compelling arbitration covering all claims. Moran then filed a Rule 59 (e) motion to reconsider or, in the alternative, to clarify the court's order, which the trial court denied. Moran filed a timely appeal from the court's denial of her motion to reconsider.

Moran contends that her claims are not arbitrable because there is no binding arbitration agreement due to the failure of a condition precedent, the parties' inability to decide on a mutually agreeable accountant. In the alternative, Moran argues that her fraud and gross negligence claims are beyond the scope of the arbitration clause. These arguments are premature, however, because a trial court order staying litigation pending arbitration is not final and, therefore, is not appealable. See Umana v. Swidler & Berlin, Chartered, 669 A.2d 717, 721 (D.C. 1995) (citing D.C. Code § 11-721 (a) (1995)); Hercules & Co. v. Shama Restaurant Corp., 566 A.2d 31, 38 (D.C. 1989); see also Everett v. US Airways Group, Inc., 328 U.S. App. D.C. 69, 71, 132 F.3d 770, 772 (D.C. Cir. 1998); Cofab, Inc. v. Philadelphia Joint Bd., Amalgamated Clothing & Textile Workers Union, 141 F.3d 105, 109 (3d Cir. 1998); McCarthy v. Providential Corp., 122 F.3d 1242, 1243-44 (9th Cir. 1997). Therefore, as we do not have jurisdiction, we dismiss the appeal.*fn2

In the alternative, Moran asserts that the arbitration agreement is "unworkable," citing Carey's initial refusal to arbitrate prior to the lawsuit and the absence of rules of implementation in the arbitration provision, and, thus, that it is likely that this dispute will remain unresolved by arbitration even after the trial court order. Therefore, she asserts, the arbitration order is the functional equivalent of a final order. While deadlock may be the practical reality facing the parties, the remedy for failure to arbitrate in the face of a trial court order compelling arbitration is not appeal to this court, but enforcement in the trial court of the arbitration agreement and the trial court's order.*fn3 Our dismissal of her appeal for lack of jurisdiction does not preclude Moran from pursuing in the trial court any remedies that she may have.*fn4

For the reasons stated above, this appeal is dismissed for lack of jurisdiction.

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