THE CIRCUIT COURT OF LOUDOUN COUNTY Stephen E. Sincavage,
STEPHEN R. McCULLOUGH, JUSTICE
Arbor Home Construction, LLC, appeals from a decision denying
its motion to compel arbitration. We conclude that the
circuit court erred in denying the motion for arbitration
and, accordingly, we will reverse the decision below.
and Mark Alexander sued Brush Arbor under a number of
theories, alleging that the home Brush Arbor constructed for
the Alexanders suffered from a variety of defects which
caused the home to sustain water damage. Brush Arbor
responded by filing a motion to compel arbitration. Article
12 of the parties' contract contained the following
Any controversy or claim arising out of or relating to this
contract, or the breach thereof, shall be settled by
arbitration administered by the Better Business Bureau under
its Construction Industry Arbitration Rules, and judgment on
the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof.
circuit court denied the motion, finding that, as the parties
conceded, "the Better Business Bureau does not have any
construction industry arbitration rules." In the absence
of such rules, the Court concluded that it is
"impossible to execute that term of the agreement."
The court reasoned that "[t]o order arbitration under
the terms of this agreement would be an order to conduct an
impossibility. To order arbitration under the procedures that
the defendant suggests would be for the [c]ourt to order the
plaintiff to abide by an arbitration clause it never agreed
Arbor filed a motion to reconsider, arguing, among other
things, that the arbitrator rather than the court was the
proper decision maker with respect to the validity of the
arbitration clause. The circuit court denied the motion to
reconsider. We awarded Brush Arbor this appeal pursuant to
Code § 8.01-581.016(1), which allows an appeal from an
order denying a motion to compel arbitration.
review a circuit court's interpretation of contractual
language, including language governing arbitration, de novo.
Schuiling v. Harris, 286 Va. 187, 192 (2013).
at the outset that the Alexanders have never challenged the
existence of a voluntary contract containing an arbitration
clause. Instead, they dispute the clause's interpretation
extent of the duty to arbitrate, just as the initial duty to
arbitrate at all, arises from contractual undertakings."
Doyle & Russell, Inc. v. Roanoke Hosp.
Ass'n, 213 Va. 489, 494 (1973). It is a court's
duty in the first instance to construe the contract to
determine what questions the parties agreed to submit to
arbitration. Waterfront Marine Constr., Inc. v. North End
49ers Sandbridge Bulkhead Grps. A, B & C,
251 Va. 417, 425-26 (1996). Brush Arbor's second
assignment of error is that the circuit court erred in
"refusing to compel arbitration because, under the broad
scope of the arbitration clause at issue, the question of
which rules were required by the arbitration clause was an
issue for the arbitrator chosen by the parties, not the
court, to decide." We agree.
language of the contract determines whether a particular
dispute is arbitrable. For example, in Weitz v.
Hudson, 262 Va. 224, 226 (2001), we considered a clause
that provided arbitration of "[a]ny dispute or
controversy" that arises "under, out of, in
connection with, or in relation to" a partnership
agreement. We concluded that this clause encompassed a claim
that one of the partners illegally converted partnership
funds. Id. at 226-27, 229. Consequently, we held
that the circuit court erred in finding that the dispute was
not subject to arbitration. Id. at 229.
Waterfront Marine, by contrast, we found that the
dispute was not arbitrable. 251 Va. at 430. In that case, a
construction company and an unincorporated association of
landowners contested whether certain bulkheads were defective
in their design and construction. Id. at 421-22. A
first arbitration award required the construction company to
perform certain repairs. Id. at 422. The landowners
filed a second demand for arbitration, essentially seeking to
force compliance with the arbitration award and further
seeking damages. Id. We held that the
landowners' second arbitration demand
"relate[d] solely to the terms of the first arbitration
award; no provision of the construction contract need[ed]
[to] be construed or applied to resolve the ...