Opinion
19-P-744
02-14-2020
DYNACON BUILDERS INC. v. Francis O'BRIEN & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Dynacon Builders Inc. (Dynacon) appeals from a judgment entered in favor of Francis O'Brien and Carol Ann O'Brien (collectively, O'Briens), after a judge of the Superior Court confirmed an arbitration award in the O'Briens' favor. See G. L. c. 251, § 12. The arbitration award offset certain of Dynacon's claims for unpaid invoices against the O'Briens' counterclaims for various breaches of the construction contract, and resulted in an award to the O'Briens of damages totaling $18,130.04, and attorney's fees and arbitration costs of $90,032.64. On appeal, Dynacon argues that the arbitrator erred by accepting nonexpert testimony on damages, by failing to consider Dynacon's full fee claim, by hearing the O'Briens' time-barred counterclaims, and by awarding Carol fees and costs as a prevailing party. We affirm.
Because the O'Briens share a last name, we use their first names to distinguish them.
Discussion. "[A]n arbitration award is subject to a narrow scope of review" (citation omitted). Beacon Towers Condominium Trust v. Alex, 473 Mass. 472, 474 (2016). "As set forth in G. L. c. 251, § 12, we review an arbitration award only to determine whether it ‘was procured by corruption, fraud or other undue means,’ whether the arbitrator was evidently partial, or whether the arbitrator exceeded the scope of his or her authority." Id. at 475, quoting Superadio Ltd. Partnership v. Winstar Radio Prods., LLC, 446 Mass. 330, 334 (2006). "Otherwise, a court is ‘strictly bound by an arbitrator's findings and legal conclusions, even if they appear erroneous, inconsistent, or unsupported by the record at the arbitration hearing.’ " Katz, Nannis & Solomon, P.C. v. Levine, 473 Mass. 784, 790 (2016), quoting Lynn v. Thompson, 435 Mass. 54, 61 (2001), cert. denied, 534 U.S. 1131 (2002).
Dynacon claims that because the matter was heard on a motion for summary judgment, we may review the record de novo. See Massachusetts Highway Dep't v. Perini Corp., 83 Mass. App. Ct. 96, 100 (2013) ("Our review of summary judgment is de novo"). The judge treated the case as arising on cross motions to vacate or confirm the award, as do we. No party can unilaterally defeat the statutory scheme circumscribing the review of arbitration awards by its choice of pleading, or by its characterization of the opposing parties' choice of pleading.
Dynacon contends that the arbitrator erred by accepting nonexpert testimony on damages, that she failed to consider Dynacon's full claim for unpaid fees and instead only looked at the final invoice, and that she awarded the O'Briens damages for counterclaims that were time barred under the contract. All of these arguments are unavailing. "An error of law or fact will not be reviewed by a court unless there is fraud; even a grossly erroneous decision is binding in the absence of fraud." Katz, Nannis & Solomon, P.C., 473 Mass. at 790, quoting Trustees of Boston & Me. Corp. v. Massachusetts Bay Transp. Auth., 363 Mass. 386, 390 (1973). No showing of fraud has been made here.
Dynacon also maintains that, because Francis alone signed the October 16, 2014 construction contract (contract), Carol is not entitled to attorney's fees as a "prevailing party" under article 15.1 of the contract. Dynacon does not contend that the claims against Carol were not arbitrable; the parties agreed to submit the dispute to arbitration. Rather, Dynacon asserts that this was a voluntary agreement to arbitrate, not a contractual one, and that because Carol did not sign the contract she is not a party to the contract. As a consequence, Dynacon argues, it does not owe her attorney's fees. See Beacon Towers Condominium Trust, 473 Mass. at 475 ("As a general rule, we have interpreted G. L. c. 251, § 10, to prohibit the award of attorney's fees in arbitration proceedings unless the parties have entered into an agreement authorizing the award of such fees").
A question of arbitrability would ordinarily be for the court to decide. See Merrimack College v. KPMG LLP, 88 Mass. App. Ct. 803, 808 (2016).
There being only one signature line for both Francis and Carol.
Dynacon itself submitted the issue of attorney's fees and costs to the arbitrator in its demand for arbitration against both O'Briens. Once Dynacon submitted the issue to arbitration, the arbitrator did not act outside the scope of her authority in deciding it. See Katz, Nannis & Solomon, P.C., 473 Mass. at 795. The arbitrator found that Francis signed the contract as Carol's agent; only one signature line appeared in the contract. The issue of attorney's fees and costs was properly before the arbitrator, and the arbitrator's factual findings and conclusions of law are not reviewable for an asserted error of fact or law. See id. at 790. The judge did not err in confirming the award.
The O'Briens' request for costs and fees on appeal is allowed; the contract provides for prevailing party costs, fees, and expenses in the event of litigation. Within fourteen days of the date of the decision in this matter, the O'Briens may apply for an award of reasonable appellate attorney's fees and costs. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The petition should address the nature of the case and the issues presented, an itemization of the time and labor required, the amount of damages involved, the result obtained, the experience, reputation, and ability of the attorney, and the usual price charged for similar services by other attorneys in the same area. Dynacon will then have fourteen days to file an opposition to the amounts requested. See Fabre, supra at 11.
Article 15.1 states:
"In the event of any arbitration or litigation relating to the project, project performance or this contract, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses."
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Judgment affirmed.