Tri County Contractors, Inc. v. Better Quality Builders, LLC

111 So. 3d 1285, 2013 WL 1800038, 2013 Miss. App. LEXIS 228
CourtCourt of Appeals of Mississippi
DecidedApril 30, 2013
DocketNo. 2012-CA-00507-COA
StatusPublished

This text of 111 So. 3d 1285 (Tri County Contractors, Inc. v. Better Quality Builders, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tri County Contractors, Inc. v. Better Quality Builders, LLC, 111 So. 3d 1285, 2013 WL 1800038, 2013 Miss. App. LEXIS 228 (Mich. Ct. App. 2013).

Opinion

JAMES, J„

for the Court:

¶ 1. This appeal follows an order from the Circuit Court of Harrison County, affirming the arbitration award of $115,166.57 in favor of Better Quality Builders LLC (Better Quality). Tri County Contractors Inc. (Tri County) challenges the order, alleging the circuit court erred by denying its motion to vacate the award. Finding no error, we affirm the order of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 15, 2009, Tri County and Better Quality entered into a construction contract. The agreement provided that Better Quality would perform rehabilitative construction on a project located in Gulfport, Mississippi. The original contract amount was $167,900. Although the contract required that any modification to the agreement be in writing, both parties orally agreed to a $5,000 increase, bringing the contract amount to $172,900. Shortly thereafter, Tri County proposed a second modification, in writing, which added $7,000 for materials and equipment and $11,600 for labor. Though Better Quality never signed a change order to reflect the proposal, it performed approximately seventy-five percent of the labor portion of the proposed modification, which totaled $8,700.

¶ 3. Nearly two weeks after Better Quality began work, Tri County brought in its own personnel to perform construction on a portion of the project. Tri County then [1287]*1287ordered Better Quality to perform work that was outside the scope of the contract. After Better Quality refused to perform the work, Tri County ordered Better Quality to cease work and leave the project. The contract, which was drafted by Tri County, contained an alternative-dispute-resolution clause, which required that any dispute between the parties be initially submitted to mediation, and then to arbitration if mediation was unsuccessful.

¶ 4. On November 12, 2009, Better Quality submitted its first request for mediation and demand for arbitration on the grounds that Tri County had breached the contract by unlawfully removing Better Quality from the project and .refusing to pay for the work completed. Mediation was held on January 8, 2010. The parties were unsuccessful in resolving the dispute. Under a provision in parties’ contract, all fees and expenses for arbitration were to be split equally between the parties.1 In spite of the contractual agreement, Tri County refused to contribute to any portion of the arbitration fees. As a result, arbitration proceedings were suspended until all fees were paid in full. On February 28, 2011, after advancing all costs of arbitration, Better Quality filed a motion to compel arbitration. As of the date of the motion, Better Quality had expended $4,750 in arbitration fees and expenses.

¶ 5. On April 20, 2011, Better Quality filed an application for entry of default due to Tri County’s failure to respond. After default was entered by the circuit court clerk, Tri County filed a letter with the circuit court, denying all claims asserted in Better Quality’s motion to compel arbitration. On May 19, 2011, Better Quality filed a motion for a default judgment. A hearing on the motion was held on August 4, 2011, during which the circuit court issued an order to compel arbitration.

¶ 6. Three separate scheduling hearings were held prior to arbitration. Finally, arbitration was scheduled for January 19, 2012. Five days before the date of arbitration, Tri County retained new counsel and requested a continuance.2 The arbitrator denied the request, and arbitration proceeded as scheduled. On the day of arbitration, Better Quality moved to exclude any documentary evidence sought to be entered by Tri County on the grounds that Tri County had failed to produce any documents during the discovery period or anytime prior to arbitration.' The arbitrator granted the motion. After hearing testimony from both parties, the arbitrator found that Tri County had breached its contract with Better Quality, and awarded Better Quality a sum of $115,166.57. The award amount included compensation for the work completed by Better Quality under the contract, lost profits suffered by Better Quality as a result of Tri County’s breach, attorney’s fees incurred by Better Quality due to Tri County’s substantial [1288]*1288delay throughout the arbitration proceedings, and reimbursement from Tri County for one-half of the costs of arbitration.

¶ 7. On February 14, 2012, Better Quality filed a motion to confirm and enforce the arbitration award. Tri County subsequently filed a motion to vacate the award. A hearing on both motions was held on March 8, 2012. The circuit court affirmed the arbitration award, finding that Tri County failed to establish specific grounds for vacating the award. The judgment of the circuit court was entered in two separate orders. One order denied Tri County’s motion to vacate the arbitration award, and the other order granted Better Quality’s motion to confirm and enforce the award. From these orders, Tri County now appeals.

STANDARD OF REVIEW

¶ 8. “[T]he scope of judicial review of arbitration awards [is] quite narrow ... and every reasonable presumption will be indulged in favor of the validity of the arbitration proceedings.” Craig v. Barber, 524 So.2d 974, 977 (Miss.1988) (internal quotation marks omitted) (quoting Hutto v. Jordan, 204 Miss. 30, 42, 36 So.2d 809, 812 (1948)). We will not disturb the findings of a circuit judge sitting without a jury unless the findings are manifestly wrong or clearly erroneous, or the judge applied an erroneous legal standard. Wilson v. Greyhound Bus Lines, Inc., 830 So.2d 1151, 1155 (¶ 9) (Miss.2002).

DISCUSSION

¶ 9. Section 11-15-133(1) of the Mississippi Code Annotated (Rev.2004). lists the grounds upon which an arbitration award may be vacated. The Mississippi Supreme Court has long held that:

the only bases in our law for refusal to enforce an arbitration award are: (a) [t]he award was procured by corruption, fraud or other undue means; (b) there was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of the parties.

Barber, 524 So.2d at 978 (quoting Miss. Code Ann. § 11-15-133(1) (Supp.1987)).

¶ 10. Tri County argues that it was prejudiced by the arbitrator’s refusal to postpone the arbitration hearing after Tri County obtained new counsel. Rule 29 of the Construction Industry Arbitration Rules and Mediation Procedures, which was incorporated into the parties’ contract, provides that the arbitrator may postpone any hearing for good cause shown upon agreement of the parties. Nothing in the rules requires the arbitrator to grant a continuance simply because a party makes a request. In fact, the record shows that even though the arbitrator had determined that sufficient cause for postponement had not been shown, the arbitrator still offered to grant a continuance if both parties agreed. After Better Quality refused to agree to a postponement, the arbitrator denied the request because Tri County had already caused substantial delay in the proceedings.

¶ 11. The order to compel arbitration was issued by the circuit court on August 4, 2011. Arbitration was held on January 19, 2012, which gave Tri County approximately five months to prepare for the hearing.

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Related

Wilson v. Greyhound Bus Lines, Inc.
830 So. 2d 1151 (Mississippi Supreme Court, 2002)
Craig v. Barber
524 So. 2d 974 (Mississippi Supreme Court, 1988)
Hutto v. Jordan
36 So. 2d 809 (Mississippi Supreme Court, 1948)

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Bluebook (online)
111 So. 3d 1285, 2013 WL 1800038, 2013 Miss. App. LEXIS 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tri-county-contractors-inc-v-better-quality-builders-llc-missctapp-2013.