Opinion
1-20-0428
06-29-2021
CARLSON BROTHERS, INC., Petitioner-Appellant, v. GTH EXCAVATING CORPORATION, Respondent-Appellee.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 19 CH 5107 Honorable Neil H. Cohen Judge, presiding.
JUSTICE COBBS delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment.
ORDER
COBBS JUSTICE
¶ 1 Held: The judgment of the circuit court confirming the arbitration award in favor of respondent is affirmed where petitioner failed to establish a gross error of law on the face of the award.
¶ 2 Petitioner-Appellant, Carlson Brothers, Inc. (Carlson), filed a petition to vacate an arbitration award in favor of respondent-appellant, GTH Excavating Corporation (GTH), alleging that the award contained gross errors of fact and law on its face. The circuit court denied the petition to vacate and confirmed the arbitration award, finding that there were no errors apparent on the face of the award. On appeal, Carlson argues that the judgment of the circuit court should be reversed or, alternatively, the cause remanded for an arbitration hearing because the arbitrator exceeded its authority by committing a gross error of law that was apparent on the face of the award. Specifically, Carlson contends that the arbitrator ignored the plain language of a subcontract which identifies GTH as the party responsible for removing excess fill from a construction site. For the following reasons, we affirm.
¶ 3 I. BACKGROUND
¶ 4 In 2017, GTH filed a complaint against Carlson in the District Court of Douglas County, Colorado (Colorado Action). The complaint alleged that in 2016, GTH entered a subcontract with Carlson to perform excavation and earthwork for a construction project in Colorado. Carlson was the general contractor and GTH served as the subcontractor. GTH alleged that Carlson breached the subcontract by failing to pay GTH for the work it performed. Relevant to this appeal is the scope of work document, attached to the subcontract. Section 3(b) (c) (VIII) of the scope of work deals with the "[i]mport/export [of] all required material to achieve designed elevations" and provides that GTH shall: (1)" [a]cknowledge that spoils generated by Carlson's other Subcontractors shall be relocated and/or placed onsite by others designated by Carlson's Project Superintendent," (2) "account for these materials prior to establishing final grade elevations," and (3) "fine grade these materials into the final grade of the site or remove the material from the site, whichever is applicable." Also relevant is Article 12 of the subcontract, which provides that the general contractor "at any time, unilaterally or by agreement with Subcontractor" may make changes in the work covered by the subcontract. Article 12 also provides that "[a] ny unilateral order or agreement under this article shall be in writing ('Change Order')" and the "General Contractor agrees to pay Subcontractor for this Work."
¶ 5 The subcontract, states that "[a] ny controversy between [the] General Contractor and Subcontractor *** shall be decided by arbitration" in Chicago. Accordingly, GTH filed a demand for arbitration pursuant to the Construction Industry Arbitration Rules of the American Arbitration Association in Chicago, Illinois. On January 31, 2018, the Colorado action was stayed pending arbitration.
¶ 6 The arbitration hearing was held on January 8, 2019 and January 9, 2019. The record does not include any transcript or substitute for a transcript of the hearing. Ill. S.Ct. R. 323 (eff. July 1, 2017). The "Report of Preliminary Hearing and Scheduling" provides that there was no court reporter. The following facts have been gleaned from the arbitrator's award, the circuit court's order, the parties' pleadings, and exhibits in the record.
¶ 7 On February 25, 2019, an arbitration award of $182,853.40 was entered in favor of GTH, which included the cost to remove the excess fill as well as arbitration fees. The award stated that there was "no disagreement between the parties that excess fill material was brought onto the [construction] site" and that the cost to remove the excess fill material was approximately $172,000. Therefore, the issue before the arbitrator was which party "ordered the excess fill material *** and who is responsible to pay for the removal of the additional spoils."
¶ 8 The award noted that there was conflicting testimony with respect to who ordered the excess fill material to be delivered to the construction site. Specifically, the award stated that representatives for Carlson "testified that it was not Carlson's responsibility as the General Contractor to bring in fill material for its subcontractor [GTH]." The arbitrator then referenced the subcontract, stating "See, Subcontract Agreement between Carlson and GTH." Representatives for GTH, on the other hand, testified that the "additional fill material was not ordered by GTH and was delivered when GTH was not working on the site." The arbitrator also considered an August 26, 2016 e-mail from Carlson's superintendent to GTH which stated:
"[Y]ou are correct Kirk [Boyd of Carlson] did tell WE O'Neil to start bring [sic] in the extra material, he did so based on conversations he had with Wayne [Rath of GTH]. Although Wayne did tell him to wait until he used up the pile that was already on site. That being said Carlson is only responsible to remove the material that we ordered on the site which [the excavator, R.E. Monk's Construction Company] verified to be 6, 000 yds." (Emphasis in original.)
¶ 9 The arbitrator noted that although Carlson's superintendent testified that" 'the purpose of the email was to get GTH back on the job' *** [and that] sometimes he had to 'tell people something just to get the job done, '" GTH's testimony indicated that it "believed Carlson was taking responsibility for bringing in and, therefore, paying to remove the excess fill material." The arbitrator found GTH's reliance on the e-mail was bolstered by the fact that Carlson did not back charge it for removal of the excess fill material until GTH submitted a final pay application in 2017. Although Carlson informed GTH in February 2017 that it held GTH responsible for removing the excess fill material, the arbitrator noted that the date of the actual subcontract change order (Back Charge) was April 12, 2017, eleven months after the excess fill was delivered in May 2016 and eights month after the e-mail. Additionally, testimony from Carlson showed that some of the items in the back charge should not have been applied to GTH, and testimony from W.E. O'Neil and R.E. Monk's Construction Company showed that they did not speak to GTH about bringing in additional fill material to the construction site. Accordingly, the arbitrator entered an award in favor of GTH.
¶ 10 Carlson moved to modify the award, arguing that the arbitrator exceeded its authority by including costs and expenses where the subcontract did "not contain any provision *** to [recover] arbitration or litigation costs or expenses." Further, Carlson asserted that the award should be modified where there was a "computational error in the award of arbitration costs." On March 29, 2019, the arbitrator denied Carlson's request for modification.
¶ 11 On April 22, 2019, Carlson filed a petition to vacate the arbitration award in the circuit court of Cook County, alleging gross errors of both fact and law. GTH moved to confirm the award.
¶ 12 On January 31, 2020, the court denied Carlson's petition, finding that the arbitrator did not exceed its authority and did not commit a gross error of fact or law. With respect to gross errors of fact, the court noted that the petition contained "a recitation of alleged errors made by the arbitrator." However, none of these errors appeared on the face of the award but rather the claims of errors were based upon "purportedly contradictory testimony and documents presented to the arbitrator." Therefore, to grant the petition would require the court "to substitute its judgment for that of the arbitrator," which it could not do.
¶ 13 With respect to Carlson's allegations of gross errors of law, the court found that there was "nothing on the face of the award showing that the arbitrator's construction of the subcontract was not possible under a fair interpretation of that agreement." Finally, the court found that the arbitrator did not exceed her authority in apportioning the administrative fees and expenses for the arbitration to Carlson where the subcontract expressly provided that the arbitration was to be held in accordance with Construction Industry Arbitration Rules of the American Arbitration Association. Carlson appealed.
¶ 14 II. ANALYSIS
¶ 15 On appeal, Carlson argues that the circuit court erred in confirming the arbitration award because it was apparent on the face of that award that the arbitrator had exceeded its authority by not analyzing the provisions of the scope of work document attached to the parties' subcontract. Carlson contends that, instead, the award only makes a single reference to the subcontract, that being, "See, Subcontract Agreement between Carlson and GTH." Carlson asserts that the scope of work provisions unambiguously state that GTH was responsible for removing the excess fill from the construction site. Therefore, Carlson argues that the award does not comport with any fair interpretation of the subcontract.
¶ 16 GTH argues that the "interpretation of the scope of work provisions in the subcontract was not the controversy decided by the arbitration." Rather, the controversy presented at arbitration was which party was responsible for removing the excess fill material from the construction site. Additionally, GTH asserts that Carlson's "myopic focus on the scope of work provisions of the subcontract is misleading" and "the entire subcontract was considered by the Arbitrator, including provisions regarding changes and payments."
¶ 17 A. Jurisdiction
¶ 18 This court previously issued a decision dismissing this appeal due to a lack of jurisdiction, finding that the notice of appeal was not timely filed within 30 days after entry of the final judgment. Subsequent to our dismissal, Carlson timely filed a petition for rehearing which we granted. Upon rehearing, we have determined that the notice of appeal was, in fact, timely filed.
¶ 19 The final judgment from which Carlson appealed was entered on January 31, 2020. For the notice of appeal to be timely, Carlson was required to file it within 30 days after the final judgment was entered. See Ill. S.Ct. R. 303(a)(1) (eff. July 1, 2017). When computing the 30-day period, the date the final judgment is entered is excluded and the last day is included unless it falls on a Saturday, Sunday, or a holiday. See 5 ILCS 70/1.11 (West 2016). "If the day succeeding such Saturday, Sunday or holiday is also a holiday or a Saturday or Sunday then such succeeding day shall also be excluded." Id.
¶ 20 In this case, the thirtieth day following January 31, 2020 was March 1, 2020, a Sunday. The succeeding day, March 2, 2020, was a state holiday in honor of Casimir Pulaski Day. See 5 ILCS 490/15 (West 2016) (" [t]he first Monday in March of each year is a holiday to be observed throughout the State and to be known as the birthday of Casimir Pulaski.") The holiday schedule for the State judicial branch is set by our supreme court pursuant to its supervisory and administrative authority. See Ill. S.Ct. M.R. 5272 (amended June 17, 2020). Although Casimir Pulaski Day is not observed by the Supreme and Appellate Courts of the State (Ill. S.Ct. M.R. 5272 (amended June 17, 2020)), it is observed by the circuit court of Cook County (see Special Order No. 2019-53 (eff. May 23, 2019)). Pursuant to M.R. 5272, in addition to holidays set by the supreme court, the chief judge in each circuit may declare a court holiday in any county in the circuit when the court facilities are otherwise closed, limited to situations when there is no court security and all other county government offices are closed. As such, Carlson's notice of appeal, filed after the circuit court's observance of Casimir Pulaski Day, on Tuesday, March 3, 2020 was timely filed within 30 days of the circuit court's final judgment. Therefore, we have jurisdiction over this appeal.
¶ 21 B. Insufficient Record
¶ 22 Prior to addressing the merits, we note, based on our review of the record, that there is no transcript or substitute for a transcript of the arbitration hearing. The appellant has a duty to provide an adequate record for review by the appellate court. Foutch v. O'Bryant, 99 Ill.2d 389, 391-92 (1984)). Without a complete record, we cannot review an appellant's claim of error, and we must presume that the arbitrator had a sufficient factual basis for the award and that the award conforms with the law. Foutch, 99 Ill.2d at 391-92; see TruServ Corp. v. Ernest & Young, LLP, 376 Ill.App.3d 218, 225 (2007) (applying Foutch to the review of an arbitration award). However, because Carlson's argument is premised on a gross mistake of law apparent on the face of the arbitration award and our review of the issue is de novo, we will nonetheless proceed to address the merits. See Midstate Siding and Window Co., Inc. v. Rogers, 204 Ill.2d 314, 319 (2003) (finding that the lack of transcript did not preclude review of the case on the merits where the issue was that of statutory construction and subject to de novo review).
¶ 23 C. Gross Error of Law
¶ 24 Carlson argues that the circuit court erred in confirming the arbitration award because it was apparent on the face of the award that the arbitrator had exceeded its authority. Our review of an arbitrator's award is "extremely limited, more limited than appellate review of a trial court's decision." Anderson v. Golf Mill Ford, Inc, 383 Ill.App.3d 474, 479 (2008). This is because parties bargain for finality when they submit a dispute to arbitration and"' [l]imited judicial review fosters the long-accepted and encouraged principle that an arbitration award should be the end, not the beginning of litigation.'" Yorulmazoglu v. Lake Forest Hospital, 359 Ill.App.3d 554, 564 (2005) (quoting Perkins Restaurants Operating Co. v. Van Den Bergh Foods, Co., 276 Ill.App.3d 305, 309 (1995)).
¶ 25 Our supreme court has instructed that arbitration awards must be construed, whenever possible, to uphold their validity. Salsitz v. Kreiss, 198 Ill.2d 1, 13 (2001). As such, a court will grant a petition to vacate an arbitration award only in extraordinary circumstances. Yorulmazoglu, 359 Ill.App.3d at 564. As set forth in section 12(a) of the Uniform Arbitration Act (Act), there are limited instances where a court may modify or vacate an arbitration award, including: (1) when "[t]he award was procured by corruption, fraud or other undue means"; (2) when there was "evident partiality by an arbitrator *** or corruption" or "misconduct prejudicing the rights of any party"; (3) when the arbitrators exceeded their powers; (4) when the arbitrators substantially prejudiced the rights of one party by inappropriately refusing to postpone or hear material evidence; or (5) when there was, in fact, never a valid agreement to arbitrate. 710 ILCS 5/12(a) (West 2018). "[T]here is a presumption that the arbitrator did not exceed his authority." Herricane Graphics, Inc. v. Blinderman Const. Co., Inc., 354 Ill.App.3d 151, 155 (2004).
¶ 26 "[G]ross errors of judgment in law or gross mistakes of fact may be reviewable" as instances of arbitrators exceeding their power but only if "they are apparent upon the face of the award." Tim Huey Corp. v. Global Boiler and Mechanical, Inc., 272 Ill.App.3d 100, 106 (1995) (citing Garver v. Ferguson, 76 Ill.2d 1, 10-11 (1979))."To vacate an award based on a gross error of law, a reviewing court must be able to conclude, from the award's face, that the arbitrator was so mistaken as to the law that, if apprised of the mistake, he would have ruled differently." Herricane Graphics, Inc., 354 Ill.App.3d at 156. The burden is on the party moving to vacate the award to prove by clear and convincing evidence that an award was improper. Id. As only its legal conclusions are at issue here, our review of the decision of the circuit court is de novo. Id. at 157.
¶ 27 Carlson contends that an arbitrator exceeds its authority where it fails to interpret a subcontract and, thus, fails to draw its decision from the essence of the subcontract. In the present case, Carlson argues that section 3(b)(c)(VIII)) of the scope of work document, attached to the subcontract, imposes on GTH the responsibility for importing and exporting materials to achieve the designated elevations. He maintains that there was a gross error of law on the face of the arbitration award as it did not "analyze, discuss, or even cite the unambiguous provisions of the *** Subcontract imposing on GTH the responsibility to import and export excess earth materials." Because there was "no reading of the[s] ubcontract and analysis regarding the removal of excess fill," Carlson contends the arbitrator deviated from its duty to construe and enforce the subcontract.
¶ 28 Generally, an arbitrator's authority is "limited by the unambiguous contract language." Shearson Lehman Brothers, Inc. v. Hedrich, 266 Ill.App.3d 24, 29 (1994) (citing Inter-City Gas Corp. v. Boise Cascade Corp., 845 F.2d 184, 187 (8th Cir. 1988)). This means that an arbitrator cannot ignore the plain language of a contract and alter the agreement, as the ultimate award must be" 'grounded on the parties' contract.'" Hedrich, 266 Ill.App.3d at 29 (quoting Inter-City Gas Corp., 845 F.2d at 187-88). However, if the contract is susceptible to more than one reasonable interpretation and the arbitrator acts in good faith, "the award is deemed conclusive upon the parties." International Ass'n of Firefighters v. City of Springfield, 378 Ill.App.3d 1078, 1081 (2008). The challenging party must show that "all fair and reasonable minds would agree that the construction of the contract made by the arbitrator was not possible under a fair interpretation of the contract." (Internal quotation marks omitted.) Garver v. Ferguson, 76 Ill.2d 1, 9-10 (1979). A party may also complain if an arbitrator exceeds their authority and does not interpret the contract," 'that is, if they disregard the contract and implement their own notions of what is reasonable and fair.'" Hedrich, 266 Ill.App.3d at 29 (quoting Hill v. Norfolk & Western Ry. Co., 814 F.2d 1192, 1195 (1987)).
¶ 29 The question is not whether an arbitrator's interpretation is correct but "whether the construction of the contract made by the arbitrator is a reasonably possible one that can seriously be made in the context in which the contract was made." (Citations and internal quotation marks omitted). Id. at 9. "Because the parties have contracted to have their disputes settled by an arbitrator, rather than by a judge, it is the arbitrator's view of the meaning of the contract that the parties have agreed to accept." AFL-CIO v. Dept. of Central Management Services, 173 Ill.2d 299, 304 (1996). As such, we may not overrule a construction merely because our reading of the contract differs from that of the arbitrator.
¶ 30 At issue here is section 3(b) (c) (VIII) of the scope of work document, which provides that GTH shall "[i]mport/export [of] all required material to achieve designed elevations" and (1)" [a]cknowledge that spoils generated by Carlson's other Subcontractors shall be relocated and/or placed onsite by others designated by Carlson's Project Superintendent," (2) "account for these materials prior to establishing final grade elevations," and (3) "fine grade these materials into the final grade of the site or remove the material from the site, whichever is applicable." According to Carlson, section 3(b) (c)(VIII) is unambiguous and provides that GTH had to "perform all Earthwork, including to account for materials placed on the site by others, either by fine grading the materials into the final grade of the site or by removing the materials from the site." As such, the "Earthwork was GTH's sole responsibility, even if Carlson or another subcontractor ordered the excess fill."
¶ 31 Although Carlson points to section 3(b)(c)(VIII) to support its argument that the plain language of the subcontract imposes the responsibility of removing excess fill on GTH, section 3(b)(c)(VIII) pertains to the import and export of "required materials." The plain language provides that GTH is responsible for importing and exporting "required materials," including spoils generated by Carlson's other subcontractors. Contrary to Carlson's assertion, section 3(b)(c)(VIII) does not explicitly state that GTH is responsible for removing "excess fill." The dispute here involves the excess fill that was brought onto the construction site which is different than what is expressly stated in the scope of work provision. As such, we are unable to conclude, from the award's face, that the arbitrator was so mistaken as to the language of the scope of work provision that, if apprised of the mistake, the arbitrator would have ruled differently. We do not find the arbitrator's failure to specifically cite to section 3(b) (c) (VIII) unreasonable. Nor, based on our reading of the section, do we find unreasonable the arbitrator's issue statement, to wit, which party "ordered the excess fill material *** and who is responsible to pay for the removal of the additional spoils."
¶ 32 In addressing the issue of who ordered the "excess fill" and who was responsible for its "removal," the arbitrator found that there was conflicting testimony. The August 26, 2016 e-mail from Carlson's superintendent to GTH stated that "Carlson is only responsible to remove the material that we ordered on the site." The arbitrator noted that representatives for Carlson testified that it was not Carlson's responsibility as the general contractor to bring in the fill material. GTH testified to explain the supposed conflicting testimony. The arbitrator also referenced the subcontract, stating "See, Subcontract Agreement between Carlson and GTH," which indicates that the arbitrator considered the subcontract in its entirety, including the attached scope of work document. Nevertheless, Carlson contends that the arbitrator did not specifically consider the scope of work provisions. However, on this point, we are left to speculate as the record does not contain a transcript of the arbitration hearings. We acknowledge that the "Report of Preliminary Hearing and Scheduling" provides that there was no court reporter. Nonetheless, it remains Carlson's burden to prove by clear and convincing evidence that the arbitration award was improper.
¶ 33 Additionally, as GTH notes, other provisions of the subcontract appear to modify the scope of work provision. In determining whether an arbitrator exceeded its authority, we must look to the contract as a whole. See Advocate Financial Group v. Poulos, 2014 IL App (2d) 130670, ¶ 67. A cursory glance at Article 12 of the subcontract shows that it allows for modification to the scope of work. Specifically, it allows Carlson "at any time, unilaterally or by agreement with Subcontractor" to make changes in the work covered by the subcontractor. Article 12 also provides that "[a]ny unilateral order or agreement under this article shall be in writing ('Change Order')" and the "General Contractor agrees to pay Subcontractor for this Work." In issuing the award, the arbitrator specifically discussed Carlson's change order for the cost to remove the excess fill. This further indicates to us that the arbitrator considered the subcontract, which includes provisions pertaining to change orders.
¶ 34 In its reply brief, Carlson contends that GTH's argument that the change order controls this matter is forfeited where GTH did not argue as such in the Colorado action and before the circuit court and because the change order is not in the record. We disagree. GTH did not forfeit its argument where the arbitrator clearly relied on the change order in its award and GTH references the change order in its brief to explain the arbitrator's reasoning behind the award. We also note that the record indicates that the change order was submitted before arbitration. Therefore, GTH has not forfeited its arguments.
¶ 35 Citing a line of cases, including First Merit Realty Services, Inc. v. Amberly Square Apartments, L.P., 373 Ill.App.3d 457 (2007), Spencer v. Ryland Group, Inc., 372 Ill.App.3d 200 (2007), and Bankers Life & Casualty Insurance Co. v. CBRE, Inc., 830 F.3d 729 (7th Cir. 2016), Carlson contends that the arbitrator exceeded its authority by ignoring the plain language of the subcontract.
¶ 36 First Merit and Spencer are distinguishable. In First Merit, this court vacated an arbitration award because a panel of arbitrators exceeded its authority when it (1) ignored the clear contract provision that allowed the defendants to sever its business relationship with the plaintiffs upon a 30-day notice, and (2) reformed a contract based on parol evidence. 373 Ill.App.3d at 463-64. There, the plaintiffs asked the arbitration panel to reform prior written agreements, conforming them to a subsequent oral agreement. Id. at 463. The written agreements contained a provision permitting termination upon a 30-day notice. Id. at 459. However, in a subsequent memorandum, the defendants' attorney stated that he had "orally agreed" to retain the plaintiff so long as the plaintiff did "a reasonable job." Id. at 460. After the plaintiffs were terminated upon 30-day notice, plaintiffs sought arbitration, and the arbitrators issued an award for the plaintiffs. Id. at 459-60. This court held that "by ignoring the clear language of the [written] agreements and relying on an alleged oral agreement, the arbitrators exceeded their authority in ruling for plaintiffs." Id. at 464. The court found that the arbitrators had no authority to reform a prior written contract to conform to a subsequent oral agreement. Id.
¶ 37 In Spencer, the parties' agreement provided, in part, that" [t]he non-prevailing party in any proceeding to enforce or contest any provision(s) of [an agreement] shall pay all reasonable costs, attorney's fees and expenses incurred by the prevailing party." 372 Ill.App.3d at 201. The arbitration award in Spencer did not mention attorney's fees at all and made no award of those fees. Id. The appellate court characterized the arbitrator's determination not to award attorney's fees as showing on its face that the arbitrator was "imposing his own compromise arbitrarily, without the semblance of contractual authorization." Id. at 206.
¶ 38 First Merit and Spencer do not advance Carlson's arguments on appeal because, as discussed above, the arbitrator did not disregard the subcontract. Rather, the award shows that the arbitrator considered the subcontract in its entirety. Unlike First Merit, which involved a clear contract provision which governed the parties conduct regarding termination, the subcontract here and its attached scope of work document did not explicitly state that GTH was responsible for the removal of excess fill. Further, unlike in First Merit, the arbitrator here did not reform the subcontract but rather considered a change order which is referenced and permitted under Article 12 of the subcontract. Similarly, unlike Spencer, where the agreement clearly stated that the non-prevailing party shall pay attorney's fees, the subcontract did not state that GTH was responsible for removing excess fill.
¶ 39 Carlson also relies on Bankers Life & Casualty Insurance Co. v. CBRE, Inc., 830 F.3d 729 (7th Cir. 2016). Although we are not bound by federal court decisions (Eickmeyer v. Blietz Organization, Inc., 284 Ill.App.3d 134, 141 (1996)), we may look to them as persuasive authority (Ramette v. AT&T Corp., 351 Ill.App.3d 73, 83 (2004)). Further, we may follow a federal decision if we find the analysis to be" 'reasonable and logical.'" Id. at 83 (quoting Mekertichian v. Mercedes-Benz U.S.A., L.L.C, 347 Ill.App.3d 828, 835)).
¶ 40 In Bankers Life, the Seventh Circuit reversed the district court's decision confirming an arbitration award. 830 F.3d 729. There, the court found that arbitration panel exceeded its authority where it considered a disclaimer in documents outside the parties' agreement and ignored the agreement itself. Id. at 731. The court noted that the documents at issue, the cost-benefit analyses (CBAs), were "the only places in which the disclaimer appear[ed]" and "not only are [they] not part of the agreement; they are not mentioned in it." Id. The court held that "[b]ecause the parties bargained for a reasoned award, reasoning should be part of the 'face of the award' and the award in Bankers Life was "based on documents outside the parties' agreement." Id. at 733.
¶ 41 Unlike Bankers Life, the arbitrator here did not ignore the agreement (i. e., the subcontract). Article 12 of the subcontract specifically permits change orders. As such, review of the change order by the arbitrator was consistent with the language of the agreement. Based on our reading, none of the cases Carlson cites support a finding that there was a gross error here.
¶ 42 In sum, we find that there was no gross error of law on the face of the award. Apparent from the award, in reaching its decision, the arbitrator clearly considered the subcontract in its entirety, which included the relevant change order. Based on the record before us, we find that the arbitrator did not exceed her authority. Accordingly, we hold that the circuit court did not err in confirming the arbitration award.
¶ 43 III. CONCLUSION
¶ 44 For the reasons stated, we affirm the judgment of the circuit court.
¶ 45 Affirmed.