STRUCTURAL LANDSCAPES, UNPUBLISHED
November 12, 1999
Plaintiff-Appellee,
v No. 209934
Oakland Circuit Court
ROUMEL & CONSTANTINE LC No. 93-466218 CK
CONSTRUCTION, INC., LASCELLES
PINNOCK, HELEN BYRD, and STANDARD
FEDERAL BANK,
Defendants-Appellants.
_____________________________________________
Before: White, P.J., and Hood and Jansen, JJ.
PER CURIAM.
Defendants appeal as of right from an order confirming an arbitration
award in favor of plaintiff. We affirm.
The parties agreed to submit their claims to arbitration. The order
referring the matter to binding arbitration provided that the decision of
the arbitrator "shall" be irrevocable and the award would be enforceable as
a judgment.1 The arbitrator ruled in favor of the plaintiff in the amount
of $14,600 and determined that defendants were not entitled to any setoff
on their counterclaim. The arbitrator also held that each party was to bear
their own costs and expenses for arbitration, "which sums shall also be
deducted from those funds held in escrow." Plaintiff filed a motion to
confirm the arbitration award. Counsel for defendants filed an answer in
response to the motion and represented that he could not attend the hearing
on the motion. Substitute counsel for defendants attempted to attend the
hearing, but the motion had been heard and granted in plaintiff's favor.
Defendants filed a motion to set aside the order confirming arbitration
award which was denied.
Defendants first argue that plaintiff's motion, while entitled a
motion to confirm arbitration award, was an untimely motion to modify the
arbitration award. We disagree. Plaintiff's motion to confirm arbitration
requested relief consistent with the arbitrator's opinion as well as
interest. However, the request for interest was withdrawn by plaintiff's
counsel. Therefore, plaintiff's caption of the motion as requesting
confirmation of the award was proper. A motion to confirm an arbitrator's
award must be filed within a year of the award, MCR 3.602(I), and
plaintiff's
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motion was timely filed. Even assuming that plaintiff's motion should have
been construed as a motion to vacate or modify the award, the failure to
seek modification of the award within twenty-one days does not deprive the
trial court of jurisdiction or discretion to entertain the motion. Detroit
Automobile Inter-Insurance Exchange v Gavin, 416 Mich 407, 422-424; 331
NW2d 418 (1982). Accordingly, defendants' objection to the timeliness of
plaintiff's motion is without merit.
Defendants next argue that the arbitrator had no authority to order any
disbursements from the escrow agreement. We disagree. An arbitrator has
exceeded his power when he acts beyond the material terms of the contract
from which he draws his authority or acts in contravention of controlling
principles of law. Dohanyos v Detrex Corp (After Remand), 217 Mich App 171,
176; 550 NW2d 608 (1996). The parties cannot seek to expand the record on
appeal, and facts not appearing from the record cannot be considered on
appeal. Coburn v Coburn, 230 Mich App 118, 122; 583 NW2d 490 (1998). The
agreement to submit the matter to binding arbitration contained within the
lower court record did not set forth any limitation on the arbitrator's
authority to render his decision. Defendants reliance on the escrow
agreement is misplaced as this issue was neither presented to nor decided
by the trial court, and the escrow agreement was not included in the lower
court record.2 Id.
Affirmed.
/s/ Harold Hood
/s/ Kathleen Jansen
1 Accordingly, the arbitration was statutory and governed by the provisions
of MCR 3.602(A). Gaines Twp v Carlson, Hohloch, Mitchell & Piotrowski,
Inc., 79 Mich App 523, 528-529; 261 NW2d 71 (1977).
2 Although a copy of the escrow agreement between Dr. Lascelles Pinnock and
First Metropolitan Title Company was attached as exhibit 7 to appellee's
brief on appeal, it was never placed before the trial court.
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STATE OF MICHIGAN
COURT OF APPEALS
__________________________________
STRUCTURAL LANDSCAPES, UNPUBLISHED
November 12, 1999
Plaintiff-Appellee,
v No. 209934
Oakland Circuit Court
ROUMEL & CONSTANTINE LC No. 93-466218 CK
CONSTRUCTION, INC., LASCELLES
PINNOCK, HELEN BYRD, and STANDARD
FEDERAL BANK,
Defendants-Appellants.
_____________________________________________
Before: White, P.J., and Hood and Jansen, JJ.
WHITE, J. (concurring in part and dissenting in part).
I agree that defendant's claim that the arbitrator exceeded his
authority by ordering that payment be made from the escrowed funds lacks
merit. However, I conclude that the February 4 order1 does not comply with
the arbitrator's decision to the extent that it effectively orders that
defendants pay the entire cost of the arbitration.
Although not identified as a separate issue, defendant's brief claims
error in the provision that the arbitrator be paid out of the escrowed
funds.2 Defendant argued this at the trial level as well. The arbitrator
awarded plaintiff $14,600.00 from Roumel & Constantine. The final
paragraphs of the award state:
It is the further decision of the Arbitrator that there is no
cause of action against Defendant, Counter-Plaintiff STANDARD FEDERAL
BANK except to the extent that STANDARD FEDERAL BANK and/or a title
company of their choosing shall not distribute any funds except to
satisfy this award.
It is the further decision of the Arbitrator that each party
shall bear their own costs and expenses of these proceedings, which
sums shall also be deducted from those funds held in escrow [Emphasis
added.]
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While defendant is incorrect in its assertion that the arbitrator did not
order that the arbitrator be paid from the escrowed funds, the arbitrator's
award did include a provision that each party shall bear its own costs and
expenses of arbitration.
None of the escrowed funds had been provided by plaintiff. Thus, under
the February 4 order, plaintiff bore none of the expenses of arbitration,
and defendants bore all of the expenses. To effectuate the arbitrator's
award, the February 4 order should have provided that plaintiff's share of
the expenses be distributed from the escrowed funds awarded to plaintiff by
the arbitrator. Thus, I would remand for entry of an amended order
directing that plaintiff be paid $11,810.63 ($14,600.00, less one-half of
the arbitration expense) out of the escrowed funds. The remainder of the
order would remain unchanged.
/s/ Helene N. White
1 The February 4 order provided:
ORDER CONFIRMING ARBITRATION AWARD
***
This matter having been referred to binding arbitration, the
arbitrator having rendered an award, and the Court being fully advised
in the premises;
IT IS HEREBY ORDERED that the award of the arbitrator, a copy of
which is attached to the within Order, is confirmed, and judgment
therefore may enter.
IT IS FURTHER ORDERED that the escrowed funds shall be disbursed
as follows: $14,600.00 to Plaintiff, $5,578.75 to Joel Sirlin, and the
balance of the escrowed funds shall be disbursed to the Defendants.
2 Defendants argue:
The provision in the order executed on February 4, 1998 provided for
two things that were clearly not in the Arbitration Award nor could
they be implied by the wording of the Arbitration Award. These things
are surplusage and constitute an attempt to modify the award.
***
The second portion of the surplusage was that $5,578.75 be paid to the
Arbitrator from the Escrow is also surplusage. The Arbitrator's Award
is silent as to how the Arbitrator will be paid. The initial order for
Arbitration entered by the Court requires the parties share the cost
of the Arbitration. Defendants-Appellants would not object if the
Arbitration award is modified to add the same provision that the costs
of the Arbitrator be shared equally between the parties. However,
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the surplusage added to the order places the burden of paying the
costs of the Arbitrator only on the Defendant who established the
Escrow.
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