Opinion
Civil Action CV-21-77
08-06-2021
TIMOTHY BLOOM, Plaintiff, v. SHAWN TAMIR, Defendant.
Plaintiff-Timothy Norton, Esq. Defendant-Marshall Tinkle, Esq.
Plaintiff-Timothy Norton, Esq.
Defendant-Marshall Tinkle, Esq.
ORDER
Thomas D. Warren, Justice
In response to the cour's order of June 10, 2021, defendant Shawn Tamir has submitted an affidavit with various exhibits and a memorandum in support of his contention, that he is entitled to an evidentiary hearing on the issues of whether the arbitrator manifested evident partiality against Tamir or exceeded the arbitrator's powers.
In his answer and counterclaim Tamil' raised a defense that the arbitration award was procured by corruption, fraud, or other undue means but he lias not pursued that defense.
On the issue of whether the arbitrator manifested evident partiality, Tamir argues that the arbitrator's decisions were punitive. A review of the various decisions that are contained in the record, however, reflect that the orders that Tamir claims were punitive in nature were based on the arbitrator's assessment that Tamir had "failed to cooperate in a meaningful way" with the arbitrator's Interim Award. Arbitrator's Final Award at 17, See Post-Jnttirim Award Oder No. 7 dated December 23, 2020. annexed as Exhibit E to Tamir Affidavit. Whether or not the Arbitrator was correct in that assessment is not an issue that can be reviewed by this court.
In general, Tamir's argument that the arbitrator manifested evident partiality against Tamir is based on Tamir's various contentions that the arbitrator's decisions were so unfair that they could only have resulted from a lack of impartiality. This amounts to an invitation to the court to review the merits of the arbitrator's rulings - which is not the role of the court under 14 M.R.S. § 5938.
Tamir argues that the arbitrator exceeded his powers because, Tamir contends, the arbitrator had no power to issue certain orders to enforce the Interim Award. The problem with this argument is that, after the issuance of the orders that Tamir argues exceeded the arbitrator's powers, Tamir reached a settlement with Bloom on all issues other than attorney's fees and costs. The actions of the arbitrator that Tamir contends exceeded the arbitrator's authority are therefore not before the court. The only issue that is before the court is the arbitrator's order awarding attorney's fees and costs. The court sees no basis on which it can find that the arbitrator's order awarding attorney's fees and costs exceeded the arbitrator's authority, Finally, in response to Tamir's argument that the attorney's fee award was designed to punish him for his disagreement with certain of the arbitrator's rulings, the court has again reviewed the Order Determining Attorney's Fees and Costs and does not find that it betrays any improper animus toward Tamir, The arbitrator carefully considered all of Tamir's arguments, Specifically, in response to Tamir's argument that the attorney's fees sought by Bloom were excessive, the arbitrator noted that Tamir had vigorously litigated the arbitration proceedings, that the proceedings had been highly contentious, and that "a party cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the other party in response." Order Determining Attorney's Fees and Costs at 7, quoting Int'l Longshoremen`s and Warehousemen's Union v. Los Angeles Export Terminal Inc., 69 Cal.App.4th 287, 304 (1999). The arbitrator nevertheless reduced Bloom's attorney's fee claim by approximately 10%.
Under the circumstances, having reviewed Tamir's submission, the court concludes that Tamir's request for an evidentiary hearing is really a request for a forum in which to rehtigate the merits and fairness of the arbitrator's rulings and would not disclose facts that would be relevant with respect to any grounds on which the court could vacate the arbitrator's award of attorney's fees and costs.
The entry shall be:
1. Defendant Shawn Tamir's request for an evidentiary hearing is denied and the arbitration award issued on February 19, 2021 awarding plaintiff Timothy Bloom attorney's fees of $145,800.00 and costs of $47,837.83 is confirmed.
2. Judgment is entered in favor of Bloom and against Tamir in the amount of $193,637, 83 with costs and post-judgment interest at 6.09%.
3. The clerk is directed to incorporate this order in die docket by reference pursuant to Rule 79(a).