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Doleac v. Real Estate Professionals9/15/2005
t "under general principles of contract law, separate agreements executed contemporaneously by the same parties, for the same purposes, and as part of the same transaction, are to be construed together." Neal, 918 F.2d at 37. Since the three separate agreements were executed at the same time, by the same parties, as part of the same transaction, they are to be construed as one instrument. Furthermore, as was the case in Russell, the APA specifically incorporates the other two agreements. Therefore, the claims under all three agreements are subject to the arbitration clause contained in the APA.
. REP also argues that the arbitration clause in question is narrow and does not include tort claims. However, when the scope of an arbitration clause is in question, the court should construe the clause in favor of arbitration because the "FAA establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay or a like defense to arbitrability." City of Meridian, Miss. v. Algernon Blair, Inc., 721 F.2d 525, 527-28 (5th Cir. 1983) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941-42, 74 L.Ed. 2d 765 (1983)). REP's tort claims relate to the LA and whether Doleac had the right to lock REP out of the building and demand money under the APA in order to unlock the building. The arbitration clause specifically states "any dispute under this agreement." Since the tort claims arise under the agreements and all three agreements are subject to the arbitration clause, all claims brought by REP are to be referred to arbitration pursuant to the arbitration clause.
Waiver
. REP argues and the chancery court found that Barry Doleac, The Doleac Company and The Doleac Building waived their right to arbitrate. The chancery court found that "the Defendant, or one or more of them, have resorted to 'self-help' to resolve one or more issues which the actor(s) believed to have created a 'dispute' between them, then such actor(s) have failed to resort to the arbitration clause of which they now want to avail themselves." The chancery court concluded that since Barry, The Doleac Company and The Doleac Building used self-help to lock REP out of the building instead of resorting to arbitration, they waived their right to arbitrate.
. However, a " aiver of arbitration is not a favored finding, and there is a presumption against it." Russell v. Performance Toyota, Inc., 826 So. 2d at 724 (quoting Miller Brewing Co. v. Fort Worth Distrib. Co., 781 F.2d 494, 497 (5th Cir. 1986)). "A party alleging waiver of arbitration must carry a heavy burden." Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324, 326 (5th Cir. 1999). In Russell, Toyota took possession of the truck in question without instituting legal proceedings against Russell. 826 So. 2d at 724.
. Here, the APA referenced the LA and clearly stated that "the purchaser agrees to lease from Seller that certain property . . . pursuant to that lease agreement, the terms of which are incorporated herein and made part of this agreement[.]" The APA also clearly identifies The Doleac Company (c/o Barry C. Doleac, President) as the Seller and Real Estate Professionals as the Buyer. Further, the language of the LA as referenced in the APA provided that if there is a default by Lessee, "Lessor may re-take the same as if this lease had not been made." The LA clearly identifies The Doleac Building as Lessor and Real Estate Professionals as Lessee. Therefore, the LA and APA specifically afforded Doleac Building, Doleac
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