City of Hattiesburg v. Precision Construction, LLC
| Docket Number: | 2014-CA-01671-COA | |
| Oral Argument: | 03-09-2016 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-17-2016 Opinion Author: Wilson, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Contract - Reconsideration of arbitration award - Section 11-15-123 - Timeliness of motion to reconsider - Waiver - Evident miscalculation - Section 11-15-135(1)(a) Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Carlton and Greenlee, JJ. Non Participating Judge(s): Fair and James, JJ. Procedural History: Hearing on motions Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 09-26-2014 Appealed from: FORREST COUNTY CIRCUIT COURT Judge: HON. ROBERT B. HELFRICH Disposition: Motion to amend, modify, and/or correcto arbitrator's decision and supplemental decision denied in part and granted in part Case Number: CI13-0068 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | The City of Hattiesburg, Mississippi |
JAMES W. GLADDEN JR. |
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| Appellee: | Precision Construction, LLC | MARK D. HERBERT, SHANNON SMUTZER MCFARLAND | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Contract - Reconsideration of arbitration award - Section 11-15-123 - Timeliness of motion to reconsider - Waiver - Evident miscalculation - Section 11-15-135(1)(a) |
| Summary of the Facts: | The City of Hattiesburg and Precision Construction LLC entered into a construction contract for the replacement of water and sewage lines. Precision began work, but problems arose that delayed the project and caused Precision to incur additional expenses. Precision submitted change orders based on these issues, but the City refused payment. Precision then demanded arbitration pursuant to the parties’ contract. After an arbitration hearing, the arbitrator awarded Precision $848,949.55 for the City’s breach of contract and stated that he would also award attorneys’ fees. The arbitrator subsequently entered a supplemental award of attorneys’ fees. The City then filed a motion for reconsideration, which the arbitrator denied. The City returned to circuit court and filed a motion to modify the arbitration award. The court denied the motion and granted Precision’s motion to confirm the award. The City appeals. |
| Summary of Opinion Analysis: | Issue 1: Motion to reconsider Section 11-15-123 provides that a party may request reconsideration of an arbitration award if the request is submitted to the arbitrator “within twenty (20) days of the receipt of the award.” In this case, the City requested reconsideration more than twenty days after the arbitrator’s written award awarding damages for breach of contract—but less than twenty days after the arbitrator’s supplemental award of attorneys’ fees. The arbitrator ruled that the City’s motion was untimely insofar as it challenged his award of damages—and timely only to the extent that it challenged his supplemental award of attorneys’ fees. The City argues that the arbitrator erred by refusing to consider all issues raised in its motion for reconsideration. The City argues that the statutory twenty-day period only commenced when the arbitrator entered a final award. However, the City did not mention this issue in any motion or response that it filed in the circuit court. At the hearing in the circuit court on the City’s motion to amend, modify, and/or correct the arbitration award, counsel for the City did mention the issue briefly in passing, but he immediately indicated that he was not asking the circuit court to address the point. Thus, the City has waived the issue. A trial judge cannot be put in error on a matter which was never presented to him for decision. Issue 2: Miscalculations The City argues that the award in this case should be modified or corrected pursuant to section 11-15-135(1)(a), which authorizes a court to modify or correct “an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award.” An arbitration award must be confirmed unless a party establishes at least one of the statutory grounds listed for vacating, modifying, or correcting an award. The term ‘evident miscalculation’ has not been defined by either the Mississippi Legislature or by Mississippi case law. Some courts have found that an ‘evident miscalculation’ is a mathematical error apparent on the face of the award. The Fifth Circuit has found that an evident miscalculation occurs where the arbitrator relied on an undisputed mistake of fact in making the award. Here, Precision cannot establish an ‘evident miscalculation’ under either standard. The arbitrator found that various delays for which the City was responsible “caused [Precision] to have to demobilize and remobilize five times to meet the changing work conditions.” The City asserts that the arbitrator’s award was overstated by $93,000 because the City had already paid Precision for three mobilizations that were anticipated and included in the parties’ contract. Not only is there no record of the arbitration hearing, but the arbitrator’s decision indicates that no such argument was made. Given the indeterminacy of the record and the ambiguity in the arbitrator’s opinion, Precision fails to establish an evident miscalculation of figures. The City’s claim that the arbitrator miscalculated Precision’s lost profits on unused 30-inch PVC pipe also fails. The City’s argument relies on a series of alleged facts, assumptions, prices, and calculations that are not evident from the arbitrator’s decision or anything else in the record. Thus, there is no error. |
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