Harkin v. G.W. Sargent-Builder, Inc.

• Court: Superior Court of Maine
• Decided: May 18, 2005
• Docket: YORcv-03-233
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. CV-03-233 1 '. If@ DONAL and LISA HA ? c7

Plaintiffs

ORDER v. 6; AND DECISION

G. W. SARGENT-BUILDER, INC., et al.,

Dona1 Harhn and Lisa Harkin contracted for the purchase and installation of a

manufactured home on their land in South Berwick. The home was manufactured by

Westchester Modular Homes, Inc. and installed by G. W. Sargent-Builder, Inc. After an

extensive list of problems developed suit was initially brought against Westchester,

Sargent and George Sargent individually. Included among the counts was an unfair

trade practices claim in Count V which, if established, would lead to an award of

attorney's fees. 5 M.R.S.A. 55 207 and 213(2).

Defendant Westchester filed an application to compel arbitration. That request

referred to a warranty application and the warranty between the Harkins and

Westchester. The warranty included an arbitration provision requiring arbitration of

"Any and all claims, disputes and controversies ..." and included a provision that, "The

parties expressly agree that t h s arbitration provision involves and concerns interstate

commerce and is governed by the provisions of the Federal Arbitration Act, (9 U.S.C. 5

1, et seq.) ... to the exclusion of any different or inconsistent state or local law.. .." The

application to compel arbitration was granted as to the claim against Westchester. An

amended complaint has been filed which added additional counts and continued to seek attorney's fees. That was followed by a second amended complaint, which added

a number of sub-contractors as defendants. The claim for attorney's fees remained.

Arbitration was held through the agreed to Construction Arbitration Services,

Inc. and an award to the Harluns against Westchester was made on January 18, 2005.

The arbitrator in h s award noted that the plaintiffs had demanded $113,321.00. He

awarded $43,241.00 plus administrative costs. The award concluded with the

statement, "This constitutes my complete AWARD as to the items submitted to me for

determination."

The plaintiffs moved for confirmation of the award and requested leave to file a

request for reasonable attorney's fees. T h s Court confirmed the award and allowed the

plaintiffs to file an affidavit for reasonable attorney's fees. The issues in dispute are

whether attorney's fees can be awarded and the amount of any attorney's fees, costs or

interest.

After a review of the written arguments and precedents and following oral

argument, I have concluded that, while the plaintiffs would need an award of attorney's

fees to make them whole, they are not entitled to them as such award is not permissible

by law.

The arbitration provisions required the arbitration of "any and all claims,

disputes and controversies." T h s court ordered that the complaint against Westchester

be submitted to arbitration pursuant to the Federal Arbitration Act and the provisions

of the agreement of the parties. The plaintiffs requested that the arbitrator award

attorney's fees. The arbitrator had the power to award attorney's fees, was asked to and

made an award, whch neither expressly included nor rejected attorney's fees. It is

likely that attorney's fees were not awarded. While the total amount of the award is

known with certainty its component parts were not specified. The most recent and best case that deals with the issue of whether a judge can

add attorney's fees to an arbitration award is Menke w. Monchecourt, 17 F. 3d 1007 (7th

Cir. 1994). Ms. Menke was a customer of the defendant stockbroker and challenged his

unauthorized trading in securities in an arbitration proceeding. The arbitration board

awarded damages, which included $8,000 in attorney's fees under an Illinois consumer

protection statute. When Ms. Menke sought confirmation of the award in the federal

district court in Chcago she also sought additional attorney's fees. The District Court

rejected that request and an appeal followed.

The Court of Appeals concluded that there is notlung in the Federal Arbitration

Act which provides attorney's fees to a party who was successful in obtaining

confirmation of the award. See 1009. The Court went on to analyze the provisions of

the federal act, 9 U.S.C. §§ 1-et seq. and stated "The upshot of all tlus is that,

notwithstanding any comparisons between talung an appeal and pursuing an action for

confirmation, there is nothing in the Federal Arbitration Act itself that would authorize

a district court to go beyond confirming an arbitrator's award and independently award

additional attorney's fees." At 1009.

As the entire dispute was subject to arbitration the Court of Appeals determined

that it was not free, as part of the confirmation of an award, to add attorney's fees. See

Schlobohm w. Pepperidge Farm, Inc., 806 F.2d 578, 580 (5thCir. 1986) for a case where

attorney's fees could be awarded because "The parties here did not agree to submit to

arbitration the entire dispute arising from the contract." In our case it will be assumed

that no attorney's fees were awarded. The fact that in Menke some fees were awarded

and more were sought is of no consequence. The point in Menke is that courts are not

free to add attorney's fees to the award as part of a judgment confirming the award. To do so would be to modify the award beyond the limited areas where modification is

permitted by 9 U.S.C. 5 11.

The plaintiffs have argued that the case of New England Energy, Inc, v. Keystone

Shipping Co., 855 F.2d 1 (1" Cir. 1988) would allow attorney's fees to be added by the

court as part of a confirmation proceeding. That case examined the relationship of state

and federal laws in the context of a procedural order to require that two arbitrations be

consolidated. New England Energy does not address attorney's fees or the ability of court's to modify awards pursuant to 9 U.S.C. 5 11.

Westchester has also objected to the taxation of costs and allowance of interest. It

is correct that the plaintiffs should not recover the $1,495.67 in expert witness fees that

they sought pursuant to 14 M.R.S.A. 51502-C(1) and 16 M.R.S.A. 5 251 because the

arbitration was not a trial in one of the courts listed in Section 251. The objection is

otherwise denied and the remaining costs and interest are allowed.

The entry is:

Plaintiffs' request for an award of attorney's fees is denied.

Costs in the amount of $940.56 are awarded with interest awarded at the statutory rates. Defendant Westchester's motion to amend judgment is dismissed as moot.

Dated: May 18,2005

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Thomas Marjerison, Esq. - Pls Paul A. Fritzsche 13 Steven Cope, Esq. - Def. Westchester Modular Homes, &@ice, Superior Court Humphrey H. N. Johnson, Esq. - Def. Steven Merrell d/b/a Little Wheel Excavating John F. Barnicle, Esq. - Defs. Kevin Whitney & Mod-Set, Inc. Roger Therriault, Esq. & Robert Hoy, Esq. - Defs. G. W. Sargent-Builder, Inc. & George W.Sarger James Whittemore, Esq. - Def. Donald Thiboutot d/b/a D&D Builders Charles W. Smith, Jr., Esq. - Def. Derrick Huff d/b/a Huff Foundation