Kautz v. Quality Awning & Con ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KARL K. KAUTZ; KAREN J. KAUTZ,
Plaintiffs-Appellants,
v.
No. 97-1366
QUALITY AWNING & CONSTRUCTION
COMPANY, dba "Ruppert
Brothers/Inrecon",
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-96-1793)
Argued: May 5, 1998
Decided: October 10, 2000
Before WIDENER and WILKINS, Circuit Judges, and
James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Daniel Lewis Hawes, HAWES & ASSOCIATES, Fair-
fax, Virginia, for Appellants. Stuart Lee Plotnick, LAW OFFICES OF
STUART L. PLOTNICK, Silver Springs, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Karl and Karen Kautz's house caught fire and suffered significant
damage, and that same day, the agents of Quality Awning and Con-
struction came to plaintiffs and proposed to repair the house, resulting
in a Work Authorization agreement being signed by the plaintiffs and
the defendant. All of these actions on the part of the defendant are
alleged to violate the Virginia Consumer Protection Act, Virginia
Code §§ 59.1-196 and 59.1-200.19, and, as well, the plaintiffs claim
conversion on the part of the defendant, which the district court
appropriately considered to be a breach of the Work Authorization
agreement.
The Work Authorization agreement contained the following lan-
guage:
Any controversy or claim arising out of or relating to this
agreement, or breach thereof, which may be properly sub-
mitted to arbitration, shall be settled by arbitration . . .
A controversy arose over the performance of the repair work.
Because of the alleged violation by the defendant of the Virginia
Consumer Protection Act, which, for our purposes we assume to be
true, the plaintiffs took the position that they have lawfully cancelled
the contract under the provisions of the Virginia statutes, and there-
fore there was no agreement to arbitrate.
The district court dismissed the complaint without prejudice on the
ground that the plaintiffs had entered into a valid agreement to arbi-
trate the dispute, which arose out of or was related to the Work
Authorization agreement, and so could not proceed with this law suit
2
in lieu of arbitration. There has been no request for arbitration by
either the plaintiffs or the defendant in this case.
We are of opinion the district court was correct, for we see no
meaningful distinction between this case and Moses H. Cone Memo-
rial Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) (affirming
Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp ., 656 F.2d
933 (4th Cir. 1981) (en banc)).
The judgment of the district court is accordingly
AFFIRMED.*
_________________________________________________________________
*The motion of Quality Awning to strike a memorandum of the
Kautzes, filed January 28, 1998, is denied.
3