Haase Construction Co. v. Strohmeyer

738 So. 2d 152, 98 La.App. 4 Cir. 2967, 1999 La. App. LEXIS 2060, 1999 WL 420363
CourtLouisiana Court of Appeal
DecidedJune 23, 1999
DocketNo. 98-CA-2967
StatusPublished
Cited by4 cases

This text of 738 So. 2d 152 (Haase Construction Co. v. Strohmeyer) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Haase Construction Co. v. Strohmeyer, 738 So. 2d 152, 98 La.App. 4 Cir. 2967, 1999 La. App. LEXIS 2060, 1999 WL 420363 (La. Ct. App. 1999).

Opinion

|, BAGNERIS, Judge.

The defendant, Charles Strohmeyer, appeals a judgment in favor of the plaintiff, Haase Construction Company, Inc., granting plaintiffs Motion for Confirmation of Arbitration Award and denying defendant’s Motion to Vacate Arbitration Award, or in the Alternative, to Modify or Correct Arbitration Award. We affirm in part, and vacate in part.

On April 10, 1995, Haase Construction entered into a written construction contract with the defendant, Strohmeyer, to do construction work for the defendant. The arbitrator awarded Haase $20,370.00 due by Strohmeyer under the construction contract.

Numbered paragraph 4.5.1 of the Construction Contract contained an arbitration clause which provides in pertinent part that:

Any controversy or Claim arising out of or related to the Contract, or breach thereof, shall be settled by arbitration in accordance with the Construction Industry Arbitration rules of the American Arbitration Association, and judgment [154]*154upon the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction thereof, ...

[¿Haase invoked this arbitration clause in pursuit of what it claimed was due from Strohmeyer under the Construction Contract. Strohmeyer does not contest Haase’s right to invoke arbitration. Stroh-meyer contends that the Arbitrator made certain awards that exceeded his authority.

The trial court confirmed the award of the arbitrator of $20,370.00 comprised of the following items: Payment Number 6— $738.00; Payment Number 7 — $13,924.00; Additional Concrete Work — $1,289.00; Additional Grate and Frame at Drive— $2,039.00; and Increase Masonry Wall Height — $2,380.00.

The formal Demand for Arbitration issued by Haase described the “Nature of the Dispute” as:

Nonpayment of payment requests 6 & 7 (final) plus approved change orders under construction contract for construction of a commercial building at 647 Hickory St. Harahan, LA.

Strohmeyer does not object to the arbitration award of the items specifically described in the Demand for Arbitration just quoted, i.e., awards for “requests 6 & 7 (final) plus approved change orders ...” However, Strohmeyer objects to the awards for additional concrete work, additional grate and frame at drive, and additional masonry wall.

Strohmeyer does not contend that these three additional items not specifically referred to in the Demand for Arbitration are not arbitrable. Rather, he contends that they were not properly part of the arbitration proceedings that form the basis of the instant case because they were not included in the Demand for Arbitration. Haase does not contest the fact that none of these three items falls launder the categories of approved change orders or “requests 6 & 7,” the only items referred to in the Demand for Arbitration.

However, Strohmeyer made no appearance and did not contest the arbitration. Strohmeyer contends that the arbitrator’s decision against him was, therefore, in the nature of a default. Implicit in this contention is the argument that, as this arbitration was in the nature of a default, the relief granted by the arbitrator should not exceed that available in a civil default, i.e., the relief should “not be different in kind from that demanded in the petition.” LSA-C.C. art. 1703. Pursuant to this analogy to a civil default, the Demand for Arbitration would be analogous to the petition referred to in LSA-C.C. art. 1703. Haase counters with the argument that arbitrations are favored. We agree.

Arbitration proceedings are not held to the same strict rules as are the courts. In the absence of statutory or agreed to procedures, the arbitrator has broad discretion in conducting the proceedings. Hennecke v. Canepa, 96-0772, p. 3 (La.App. 4 Cir. 5/21/97); 700 So.2d 521, 522, writ denied, 97-1686 (La.10/3/97), 701 So.2d 210. The appellate court’s function is to determine if the arbitration proceedings have been fundamentally fair. Id.

Further, Haase contends that where LSA-R.S. 9:4211(B) provides that arbitration awards may be modified, “Where the arbitrators have awarded upon a matter not submitted to them ...it does not mean that every item to be considered by the arbitrator must be specifically delineated in the Demand for Arbitration. Implicit in Haase’s assertion is the principle of arbitration that once the parties have agreed to the arbitration process they are presumed to accept the risk of procedural and substantive mistakes of either fact or law. Id.

LHaase contends that when Strohmeyer failed to attend the arbitration he “accepted the risk” that the arbitrator’s award would exceed the strict literal limits of the claims described in the Demand for Arbitration. In favor of this argument, we note that Strohmeyer does not contest the [155]*155fact that the three items in the award that he opposes in this appeal were arbitrable under the agreement. Strohmeyer implicitly relies on the principle enunciated in Hennecke, supra, i.e., “Louisiana’s arbitration statute authorizes the courts to vacate arbitration awards obtained in violation of due process requirements.” In effect, in order to find for Strohmeyer this Court must find that when the award of the arbitrator included three items not included in the Demand for Arbitration, that it was fundamentally unfair to Strohmeyer and that the lack of notice effectively violated his due process rights.

We agree that the demand need not specifically delineate every item to be considered by the arbitrator. However, where the language of the demand is phrased in such terms that the only reasonable construction to be given that language would include certain limitations, then such limitations are enforceable.

In the instant case there is nothing general in the language of the demand. Further, there is no catchall language from which Strohmeyer could have reasonably inferred that the arbitration proceedings might encompass more than those items specifically delineated. By specifically describing certain items and including no non-limiting language (such as “including, but not limited to”) 1 the only normal construction to be given to the demand is that the list is exclusive and comprehensive.

1 sThe court opines that it may be one thing to fail to describe in detail every item to be covered by an arbitration proceeding, but it is quite another to send a party a demand for arbitration excluding by implication from the parameters of the arbitration certain items which is what the Demand for Arbitration in this case implicitly does. The party receiving such a demand is reasonable in relying on it in deciding whether to go to the trouble and expense of attending and contesting the issues presented at the arbitration proceeding. To put it another way, it would be fundamentally unfair and a violation of Strohmeyer’s due process rights to permit the award of the additional three contested items in view of the language of the notice. This is not the same as saying that we are adopting Strohmeyer’s argument that we should follow the civil law procedure relating to defaults. We must bear in mind that a primary purpose of arbitration is a rejection of civil procedure. Arbitration awards may not be overturned for errors of fact or law. Tower Hill Trading Co., Ltd. v. Howard, Weil, Labouisse, Friedrichs, Inc., 96-0463, p. 5 (La.App. 4 Cir. 1/22/97); 687 So.2d 1096, 1099.

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Bluebook (online)
738 So. 2d 152, 98 La.App. 4 Cir. 2967, 1999 La. App. LEXIS 2060, 1999 WL 420363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haase-construction-co-v-strohmeyer-lactapp-1999.