Before Farrell, Reid and Glickman, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Herbert B. Dixon, Jr., Motions Judge)
In this residential construction contract case, appellant Hugh Newell Jacobsen challenges the trial court's judgment dismissing his legal action to enjoin appellees Amie W. and Huntington T. Block from pursuing their demand for arbitration. Mr. Jacobsen contends that the trial court erred in failing to (1) address whether the Blocks' arbitration demand was barred by the statute of limitations, and (2) conclude that, under the limitations period set forth in the construction contract, the Blocks failed to file a timely demand. We reverse the trial court's judgment and remand this matter for further proceedings consistent with this opinion.
The record before us reveals the following events. In Spring 1991, the Blocks decided to construct a residence on Nantucket Island in Massachusetts. In July 1991, they entered into a standard owner/architect contract with Mr. Jacobsen who agreed to perform architectural services for the construction. The Blocks accepted the house from the contractor on July 31, 1992, and signed the certificate of substantial completion. They did not begin actual occupation until Summer 1993 because construction continued into 1993.
In late Summer 1993, the Blocks noted problems with the radiant floor heating system. They contacted the construction contractor and the plumbing and heating contractor to express their concern and their desire to have the system corrected by Summer 1994. In Summer 1994, the plumbing and heating contractor advised the Blocks that the heating system was working properly. Nonetheless, the Blocks again experienced problems with the heating system in Summer 1995 as well as Summer 1996. The contractors concluded that the problems were mechanical. A heating specialist recommended certain adjustments in 1996. The adjustments were made, but the problems continued. Mr. Block also contacted the California manufacturer of the radiant heating system, eht Sigmund. An engineer for the manufacturer concurred that the problems were mechanical, and recommended that the temperature of water feeding into the heating coils which were inside concrete supporting slabs be raised. This step, as well as additional mechanical changes in November and December 1996, did not resolve the problems.
During Fall 1996, the contractors advised Mr. Block of an air gap in the floor. Mr. Block in turn informed Mr. Jacobsen about the air gap. Mr. Jacobsen had changed the original design of the flooring, and it was suspected that the change may have contributed to the air gap. After heating tests proved unsuccessful in January 1997, Mr. Block hired a heating engineering specialist in February 1997. Mr. David Elovitz was asked to evaluate the design of the heating system. Mr. Elovitz completed his report in March 1997. He identified thirteen defects in the design of the heating system as the cause of the problems. Specifically he concluded, inter alia, that the air gap in the flooring was caused by the elimination from the original construction design of the specification for gypsum concrete, and that the reliance on a radiant heating system, without a supplementary system, "was an inherently deficient design." Subsequently, the Blocks filed their arbitration demand on January 29, 1998.
In May 1998, in response to Mr. Jacobsen's motion to enjoin the Blocks' demand for arbitration, the motions judge
conclude[d] that the contract language between the parties in this case gives broad authority to the arbitrator to decide all factual and legal issues relating to a request for arbitration pursuant to the contract, including whether the request for arbitration is timely. Therefore, the petition for an injunction is without merit, and it would be improper for the court to grant such relief when the parties have contracted for all disputes to be decided by the arbitrator.
Mr. Jacobsen filed a timely motion for reconsideration. Before the motions court disposed of his motion for reconsideration, Mr. Jacobsen filed his notice of appeal.