D&E Construction Co. v. Robert J. Denley Co.

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
November 15, 2000 Session
D&E CONSTRUCTION COMPANY, INC. v. ROBERT J. DENLEY CO.,
INC.
Appeal By Permission from the Court of Appeals, Western Section
Chancery Court for Shelby County
Nos. 98-0313-1, 98-0322-2 Hon. Walter L. Evans, Chancellor
No. W1998-00445-SC-R11-CV - Filed January 19, 2001
The contractor submitted to arbitration a contractual payment dispute with the project owner arising
from a contract to build a subdivision in Collierville. The arbitrators found in favor of the contractor
and included an award of attorney’s fees. The trial court determined that the arbitration panel
exceeded its authority in awarding attorney’s fees and vacated the arbitration award. The Court of
Appeals reversed, reinstating the entire award. We hold that when the arbitrators awarded attorney’s
fees, they exceeded their authority by awarding upon a matter not within the scope of the contract’s
arbitration provision. Therefore, we reverse in part the judgment of the Court of Appeals and vacate
the award of attorney’s fees.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed in
Part and Reversed in Part; Case Remanded to the Chancery Court for Shelby County
WILLIAM M. BARKER , J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J., and
FRANK F. DROWOTA , III, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER , JJ., joined.
Julie C. Bartholomew, Somerville, Tennessee, for the appellant, Robert J. Denley Co., Inc.
Ted M. Hayden, Memphis, Tennessee, for the appellee, D&E Construction Company, Inc.
OPINION
On October 5, 1995, Robert J. Denley Company, Inc. (“Denley”), the project owner, entered
into a construction agreement with contractor D&E Construction Company, Inc. (“D&E”) to develop
the Cottonwood Estates Subdivision in Collierville, Tennessee. In the contract, D&E agreed to
provide all necessary labor, utilities, services, and materials for the building project. The contract
also contains a provision providing for a retainage fund to be withheld until the completion of the
contracted work. The agreement requires the arbitration of “all claims or disputes” relating to the
contract that arise between the contractor and the owner. Specifically, the arbitration provision of
this contract states in pertinent part:
10.8 All claims or disputes between the Contractor and the Owner arising out [of]
or relating to the Contract, or the breach thereof, shall be decided by arbitration in
accordance with the Construction Industry Arbitration Rules of the American
Arbitration Association currently in effect unless the parties mutually agree otherwise
and subject to an initial presentation of the claim or dispute to the Architect . . . .
Notice of the demand for arbitration shall be filed in writing with the other party to
this Agreement and with the American Arbitration Association and shall be made
within a reasonable time after the dispute has arisen. The award rendered by the
arbitrator or arbitrators shall be final, and judgment may be entered upon it in
accordance with applicable law in any court having jurisdiction thereof. . . . The
agreement herein among the parties to the Agreement and any other written
agreement to arbitrate referred to herein shall be specifically enforceable under
applicable law in any court having jurisdiction thereof.
In addition, the contract contains a choice-of-law clause requiring all provisions of the contract to
be decided in accordance with Tennessee law.1
During the course of construction, disputes arose between the parties. Consequently, after
the project was completed, Denley refused to pay the contract retainage amount of $64,756.09 to
D&E. In response, D&E filed with the American Arbitration Association a demand for arbitration
to resolve the contractual payment dispute. Denley thereafter filed a response to the demand for
arbitration and a counterclaim requesting damages. Although neither party requested attorney’s fees
in their written submissions for relief, it is undisputed that D&E orally notified Denley prior to the
arbitration hearing that it would be seeking attorney’s fees.
In December 1997, a three-person arbitration panel, chosen in accordance with the
Construction Industry Arbitration Rules of the American Arbitration Association, conducted the
1
“19.1 The Contract shall be governed by the law of the place where the Project is located,” in this case,
Collierville, Tennessee.
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arbitration hearing.2 At the hearing D&E requested attorney’s fees as additional compensation for
Denley’s breach of contract. Denley objected to the arbitrators’ consideration of this issue. On
January 15, 1998, the panel issued a written award, itemizing on separate lines the distinct categories
of its compensatory awards to D&E: the total contract retainage amount, interest, and attorney’s
fees. The panel also directed Denley to pay the administrative fees and expenses of the American
Arbitration Association and the compensation and expenses of the arbitrators. The Panel denied
Denley’s counterclaim in its entirety, awarding Denley none of the relief it requested.
Subsequently, D&E filed a petition to confirm the arbitration award pursuant to Tennessee
Code Annotated section 29-5-312.3 In response, Denley filed a petition for an order vacating or, in
the alternative, modifying the arbitration award pursuant to sections 29-5-3134 and -3145
2
A transcript of the arbitration hearing is not in the record in this case.
3
This section provides that “[u]pon application of a party, the court sh all confirm an awa rd, unless, w ithin
the time limits hereinafter imposed, grounds are urged for vac ating or mod ifying or correcting the award, in w hich case
the court shall proceed as provided in §§ 29-5-313 and 29-5-314.” Tenn . Code Ann. § 29-5-3 12 (2000).
4
This section requires a court to vacate an award where:
(1)The aw ard was proc ured by co rruption, fraud o r other undu e means;
(2)There was evident partiality by an arbitrator appointed as a neutral or corruption
in any of the arbitrators or misconduct prejudicing the rights of any party;
(3)The arbitrators ex ceeded their po wers;
(4)The arbitrators refused to postpone the hearing upon sufficient cause being
shown therefor o r refused to hear evid ence m aterial to the controversy or otherwise
so conducted the hearing, contrary to the provisions of § 29-5-306, as to prejudice
substantially the rights of a party; or
(5)There was no arbitration agreement and the issue was not adversely determined
in proceedings under § 29-5- 303 an d the party did not participate in the arbitration
hearing without raising the objection.
The fact that the re lief was suc h that it could not or w ould no t be grante d by a co urt of law or equity
is not ground for vacating or refusing to confirm the award.
Tenn. Code Ann. § 29 -5-313 (2000). Denley raised the following issues in its argument before the Cha ncery Court:
the award was procured by undue means; there was evident partiality by one or more arbitrators and/or misconduct
prejudicing the rights of Denley; the arbitrators exceeded their powers; and the arbitrators refused to hear evidence
material to the controversy or otherwise conducted the hearing contrary to the provisions of section -306 , so as to
prejudice substantially the rights of Denley.
5
This section sets forth the following grounds that, if met, require a court to modify or correct an award:
(1)There was an evident miscalculation of figures or an evident mistake in the
description of any person, thing or property referred to in the award;
(2)The arbitrators have awarded upon a matter not submitted to them and the award
may be corrected without affecting the merits of the decision upon the issues
submitted; or
(3)The award is imperfect in a matter of form, not affecting the merits of the
controversy.
Tenn. Code Ann. § 29-5-314 (2000). Denley raised the alternative argument that if the award should not be vacated
(continu ed...)
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respectively. The two causes of action were consolidated.
On July 23, 1998, D&E filed a motion for summary judgment confirming the arbitration
award rendered in favor of D&E and requested a judgment against Denley for the amount of the
award, pre-judgment interest, and attorney’s fees incurred by D&E in confirming the arbitration
award.6 At the initial hearing on the motion for summary judgment, the trial court indicated that it
desired additional evidence with respect to any modifications that were made to the written
arbitration provision regarding the payment of administrative expenses and attorney’s fees.
Therefore, the motion hearing was continued to a later date.
At the continued hearing, the chancellor received three exhibits into evidence: the parties’
construction agreement, the demand for arbitration filed by D&E, and the arbitrators’ written award.
Although the court did not address the summary judgment motion specifically, it ultimately ruled
that the arbitration panel exceeded its authority in awarding $13,000 in attorney’s fees to D&E.
Specifically, the court explained:
In the contract, there is no reference whatsoever as to attorney fees, and it’s the
Court’s opinion that the law of the State of Tennessee is that unless the attorney fees
have been agreed to between the parties in a contractual matter, that the award of
attorney fees is not appropriate under the circumstances, and therefore, the Court can
find nothing in this agreement which makes Mr. Denley liable for attorney fees that
may be awarded as a result of a breach.
....
The Court is of the opinion that even if there is a breach unless there is a provision
where Mr. Denley has agreed to pay attorney fees, then that is not a proper matter for
the arbitrators to decide.
....
Therefore, the Court is of the opinion for the arbitrators to award attorney fees where
there is no provision in the contract for attorney fees or there was not a part of the
demand for arbitration which was submitted to them that the arbitrators exceeded
their authority and that the award will be vacated.
Accordingly, in a written order vacating the arbitration award, the trial court found that the
“arbitrators’ award of attorney[’]s fees exceeded their powers, that the attorney[’]s fees were integral
to the award, and that the arbitration award should, therefore, be vacated.”
D&E appealed the chancellor’s decision, arguing that the “American Rule” requiring each
5
(...continued)
in its entirety, then all of the grounds set forth in this section exist to warrant modification of the award.
6
A trial cour t has the disc retion to aw ard attorn ey’s fees in curred in post-arbitration proceed ings. Wachtel
v. Shoney’s, Inc., 830 S.W.2d 905, 90 9 (Tenn. Ct. App. 1991).
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litigant to pay its own attorney’s fees absent statutory authority or a contractual provision to the
contrary does not necessarily apply to arbitration proceedings in Tennessee. Citing Guess v. Maury,
726 S.W.2d 906 (Tenn. Ct. App. 1986), the Court of Appeals rejected this argument, reiterating this
jurisdiction’s well established rule that attorney’s fees cannot be awarded in contract disputes unless
the contract or applicable statutory law so provides. The intermediate court then addressed the issue
of whether the panel exceeded its power in awarding attorney’s fees. Relying upon this Court’s
decision in Arnold v. Morgan Keegan & Co., 914 S.W.2d 445 (Tenn. 1996), the court agreed that
the arbitration panel’s award of attorney’s fees could be “found to have [been] an error of law,” but
such error was nevertheless “insufficient to invalidate an award fairly and honestly made.” Arnold,
914 S.W.2d at 451. Therefore, the Court of Appeals reversed the judgment of the trial court and
remanded the case for further proceedings.
We granted Denley’s petition to address the following issue: whether the Court of Appeals
erred in reinstating the entire arbitration award, including attorney’s fees, based on the intermediate
court’s determination that the arbitrators had not exceeded their powers in awarding these fees. We
hold that the Court of Appeals did err in affirming the arbitrators’ award of attorney’s fees as part
of the total award of damages for the breach of contract claim. Pursuant to Tennessee Code
Annotated section 29-5-313(a)(3), we find that the arbitrators exceeded their authority when they
awarded upon a matter not within the scope of the contract’s arbitration provision. Therefore, we
vacate the award of attorney’s fees, and we remand this case to the trial court for further proceedings
to consider the other issues raised by the owner in its petition to vacate the award.7
Standard of Review
Tennessee has adopted the Uniform Arbitration Act, see Tenn. Code Ann. §§ 29-5-301 to
-320 (2000), which governs “the scope of judicial review of arbitration awards.” Arnold v. Morgan
Keegan & Co., 914 S.W.2d 445, 447-48 (Tenn. 1996). The trial court’s role in reviewing the
decision of arbitrators is limited to those statutory provisions that establish the grounds to modify
or vacate an arbitration award. Id. at 48. Upon application of a party to the arbitration to confirm
the award, Tennessee Code Annotated section 29-5-312 requires the trial court to “confirm [the]
award, unless, within the time limits hereinafter imposed, grounds are urged for vacating or
7
The Court of Appe als was asked to decide whether the case should be remanded for a hearing on the
additional grounds asserted in the trial court for vacation of the award. The intermediate court decided in the
affirmativ e, stating:
The record reflects that the parties by stipulation ente red the three exhibits . . . . There was no
evidence presented by either party other than the exhibits. The record also reflects that Denley’s
counsel in colloquy with the court indicated that evidentiary proof would be forthcom ing on the part
of Denle y. The Court only considered the issue concerning the award of attorney fees. Although
Denley’s counsel did not attempt to put on any evidence and apparently was not precluded by the
court from doing so, it does appear that the hearing before the court was confined to the issue of the
award of attorney fees and n ot the othe r issues rais ed by Den ley’s petition to vacate the award. It
appears that the trial court’s ruling from the bench indicated to counsel that the hearing was ended.
In fairness, D enley sho uld hav e its day in co urt.
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modifying or correcting the award . . . .” The arbitration award may be vacated if, among other
reasons, “the arbitrators exceeded their powers.” Tenn. Code Ann. § 29-5-313(a)(3). In the
alternative, a trial court can modify or correct the award when “[t]he arbitrators have awarded upon
a matter not submitted to them and the award may be corrected without affecting the merits of the
decision upon the issues submitted.” Tenn. Code Ann. § 29-5-314. In all cases warranting judicial
review of arbitration awards, the trial court “must accord deference to the arbitrators’ awards.”
Arnold, 914 S.W.2d at 448.
This Court is also required to apply a deferential standard of review. See id. at 450. In
Arnold, we held that when an appellate court reviews a trial court’s decision in an arbitration case,
“it should review findings of fact under a ‘clearly erroneous’ standard, [that is,] accept those facts
as found unless clearly erroneous.” Id. Moreover, we are “not permitted to consider the merits of
an arbitration award even if the parties allege that the award rests on errors of fact or
misrepresentation of the contract.” Id. Where, as here, the issues presented are questions of law,
we must resolve the matter “with the utmost caution, and in a manner designed to minimize
interference with an efficient and economical system of alternative dispute resolution.” Id.
ANALYSIS
Section -302 of the Tennessee Uniform Arbitration Act provides that “[a] written agreement
to submit any existing controversy to arbitration or a provision in a written contract to submit to
arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable
save upon such grounds as exist at law or in equity for the revocation of any contract . . . .”
Therefore, the scope of an arbitrator’s authority “is determined by the terms of the agreement
between the parties which includes the agreement of the parties to arbitrate the dispute.”
International Talent Group, Inc. v. Copyright Management Inc., 769 S.W.2d 217, 218 (Tenn. Ct.
App. 1989). When the parties agree to arbitrate, they are bound by the terms of that arbitration
provision. Arbitrators exceed their powers when the issue that they decide is not within the scope
of the agreement to arbitrate. Id. In this case, the parties agreed to submit to arbitration “all claims
or disputes between the Contractor and the Owner arising out [of] or relating to the Contract, or the
breach thereof.” D&E asserts that the contract’s broad language requiring arbitration of “all claims
or disputes” relating to the contract or its breach is a clear indication of the parties’ intent to include
claims of attorney’s fees in a breach of contract dispute. We disagree.
It is well settled that courts must examine the content of the entire written agreement to
determine the contracting parties’ intent. “Contractual terms should be given their ordinary
meaning . . . and should be construed harmoniously to give effect to all provisions and to avoid
creating internal conflicts.” Wilson v. Moore, 929 S.W.2d 367, 373 (Tenn. Ct. App. 1996). In
addition, a contract’s provisions must be interpreted in the context of the entire contract, “‘viewed
from beginning to end and all its terms must pass in review, for one clause may modify, limit or
illustrate another.’” Frizzell Constr. Co., v. Gatlinburg, L.L.C., 9 S.W.3d 79, 85 (Tenn. 1999)
(quoting Cocke County Bd. of Highway Comm’rs v. Newport Utils. Bd., 690 S.W.2d 231, 237
(Tenn. 1985)); see also Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 597
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(Tenn. Ct. App. 1999). Although the arbitration provision in this case gives the arbitration panel
very broad authority to decide any claims relating to a breach of contract dispute, when looking at
the contract in its entirety, we find no provisions requiring the owner to pay attorney’s fees to the
contractor in the event of its breach of the contract.
On the other hand, there are two provisions in the contract requiring the contractor to
indemnify the owner against certain claims,8 which include, and specifically mention, the payment
of attorney’s fees as part of any related expenses. After reading the contract in its totality, we
conclude that the maxim expressio unius est exclusio alterius is applicable here. “Literally
translated, the phrase . . . means: the expression of one thing is the exclusion of another (of the same
kind). Whilst the rule is more frequently applied to the construction of statutes and wills, it equally
is applicable to other instruments of writing.” City of Knoxville v. Brown, 260 S.W.2d 264, 268
(Tenn. 1953). We conclude that application of this canon to this case provides further evidence that
the parties did not intend to arbitrate the issue of attorney’s fees relating to the owner’s breach of the
agreement.
Moreover, the parties included a choice-of-law provision, which does clearly reflect the
parties’ intention, absent evidence of agreement to the contrary, “to arbitrate all disputes ‘arising out
of, or relating to’ their agreement–but only to the extent allowed by Tennessee law.” Frizzell, 9
S.W.3d at 85. Hence, the broad nature of the arbitration provision is limited by applicable Tennessee
law. In that respect, Tennessee Code Annotated section 29-5-311 states clearly and unambiguously
that attorney’s fees are not to be awarded for work performed in arbitration proceedings absent the
parties’ understanding to the contrary: “Unless otherwise provided in the agreement to arbitrate, the
arbitrators’ expenses and fees, together with other expenses, not including counsel fees, incurred in
the conduct of arbitration, shall be paid as provided in the award.” (emphasis added). Therefore,
because the parties did not specifically provide for the arbitration of attorney’s fees relating to the
enforcement of the contract and did not otherwise agree to arbitrate this issue, the arbitration clause
does not indicate the parties’ intent to override Tennessee law excluding attorney’s fees from the
payment of costs and expenses incurred in arbitration.
The parties in this case are both sophisticated business organizations and presumably are
aware that Tennessee law does not provide for the payment of “counsel fees” incurred in arbitration
absent the parties’ agreement to the contrary. Cf. Frizzell, 9 S.W.3d at 85 n.12. Moreover, the
parties initialed the bottom of each page of the contract embodying the general conditions,
8
Provision 9.12 of the parties’ agreement requires that “the Contractor shall indemnify and hold harmless the
Owner, Architect, Architect’s consultants, and agents and em ployees of any of them from and against claim s, damages,
losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the
Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or
to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting therefrom, but
only to the extent caused in whole or in part by negligent acts omissions of the Contractor . . . .” (emphasis added).
Provision 15.4 provides: “If [a lien arising out of this Contra ct] remain s unsatisfied after paym ents are made,
the Contractor shall refund to the Owner all money that the Owner may be com pelled to p ay in discharging such lien,
including all costs and reasonable attorneys’ fees.” (emphasis added).
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presumably signifying that all conditions were read, understood, and accepted. Accordingly, the
failure of the parties to amend the form contract’s terms to include the arbitration of attorney’s fees
relating to the enforcement of the contract leads this Court to conclude that the parties did not intend
for the payment of attorney’s fees to be decided by the arbitrator. Cf. id.
The question, then, is whether the arbitrators exceeded their powers, thereby requiring the
award of attorney’s fees to be vacated pursuant to section -313(a). When, as in this case, there is a
clear decision by the parties to arbitrate certain matters, and there exists an arbitrable issue submitted
to the panel for resolution, the panel has not exceeded its powers pursuant to 29-5-313(a) in
resolving that issue. For example, the arbitration panel acted within the scope of its authority when
it awarded the retainage fund in its resolution of the contractual payment dispute.
On the other hand, we find that the panel erred in awarding attorney’s fees. Because the
arbitration provision, read within the context of the parties’ entire written agreement, precludes
arbitrators from deciding that issue, the arbitration panel lacked jurisdiction to award attorney’s fees.
We agree with Denley that the panel exceeded its powers as set forth by the agreement to arbitrate.
Nevertheless, we decline to adopt Denley’s requested remedy, that is, to vacate the entire arbitration
award. Instead, in the spirit of promoting prompt settlement of disputes via alternative dispute
resolution, we opt for a more equitable remedy: sever the award and vacate only the attorney’s fees
from the total amount awarded to D&E. Cf. Smith v. Waller, No. 03A01-9704-CH-00127, 1997 WL
412537, at *2 (Tenn. Ct. App. filed at Knoxville July 24, 1997) (deleting the award of attorney’s fees
from the total arbitration award).
Other states that have adopted the Uniform Arbitration Act have seen it fit to elide a non-
authorized award from the rest of the arbitration award. For example, in Edward Electric Co. v.
Automation, Inc., 593 N.E.2d 833, 843 (Ill. App. Ct. 1992), the arbitration agreement did not
expressly provide for the authority of the arbitrators to award punitive damages. Therefore, the court
vacated that portion of the award, confirming the remainder. Although the appellant argued that
arbitration awards are not severable, that argument was rejected by the court: “Where parts of an
award are not in any manner dependent on one another, the award is severable and sustainable in
part.” Id.9
9
A number of other states that have adopted the Uniform Arbitration Act find it appropriate to sever an
arbitration award, v acating o nly certain portions o f the entire aw ard: Watson v. Duval County Sch. Bd., 408 So. 2d
1053, 1055 (Fla. Dist. Ct. App. 1981) (vacating part of arbitration award, holding that arbitrator exceeded his powers
in removing four le t te r s f r om teacher’s p ersonne l file, and in aw arding ap pellant a job contract); Bingha m Co unty
Comm ’n v. Interstate Elec. Co., 665 P.2d 1046, 1 052 (Id aho 19 83) (vac ating aw ard of attor ney’s fee s, holding that it
was beyond the power of the arbitrator to award these fees); Lee B. Stern & Co. v. Zimmerman, 660 N.E.2d 170, 174
(Ill. App. Ct. 1995) (vacating the arbitrators’ award of attorney’s fees because this award exceeded their powers) ;
School City of East Chicago, Indiana v. East Chicago Fed’n of Teachers , 422 N.E.2d 656, 663 (Ind. Ct. App. 1981)
(vacating that portion of the arbitrator’s award granting punitive d amag es); Maine State Employees Ass’n Local 1989
v. State Dep’t of Corrections, 593 A.2d 650, 651 (Me. 1991) (vacating that portion of the judgment lacking clarity and
remanding to the arbitra tor for furth er clarification); Local 589, Amalgamated Transit Union v. Massachusetts Bay
(continu ed...)
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Denley argues in the alternative that if the arbitrators have not exceeded their powers, then
they have made an award based upon a matter not submitted to them pursuant to Tennessee Code
Annotated section 29-5-314.10 However, for this section to be applicable, all issues to be decided
by the arbitrators, whether actually submitted or not, must be capable of being arbitrated according
to the terms of the arbitration agreement. We have already determined that the issue of attorney’s
fees falls outside the scope of the parties’ agreement, thereby rendering section -314 inapplicable.
CONCLUSION
In summary, we hold that the Court of Appeals erred in confirming the entire arbitration
award. The contract as a whole reflects the parties’ intent for the arbitrators to decide all disputes
in accordance with Tennessee law, and, absent the parties’ clear agreement to the contrary,
Tennessee prohibits the award of attorney’s fees for arbitration proceedings. While the arbitrators
did resolve the clearly arbitrable issue submitted to them, the panel exceeded its authority in
awarding these fees. Accordingly, the judgment of the Court of Appeals is affirmed in part and
reversed in part. The award of attorney’s fees is vacated. This case is remanded to the trial court
for further proceedings to consider the other issues raised by the owner in its petition to vacate the
award.
9
(...continued)
Transp. Auth., 467 N.E.2d 87, 95 (Mass. 1984) (severing unenforceable portions of the arbitration award as beyond
scope of arbitrator’s authority and enforcing the remainder of the award); G. L. Wilson Bldg. Co. v. Thorn eburg Hosiery
Co., 355 S.E.2d 815, 818-19 (N.C. Ct. A pp. 1987) (holding that the arbitrators exceeded their authority in awarding
attorney’s fees and v acated this portion o f the awa rd); Springf ield Teachers A ss’n v. Springfield Sc h. Dirs., 705 A.2d
541, 548 (Vt. 1997) (vacate judgment of lost wages and benefits, confirming the rest of arbitrator’s decision on the
merits); Gelles & Sons v. Matherne, 1990 WL 751374, at *1 (Va. Cir. Ct. 1990) (vacating arbitrator’s award of punitive
damages because such aw ard exceeded arbitrator’s authority and confirming remainde r of award).
10
Only tho se issues con tained in th e written su bmission may b e decided by the arb itrators. The contract
stipulates that the arbitration proceedings shall be in accordance with the Construction Industry Arbitration Rules of the
Ame rican Arb itration Asso ciation. As s uch, rule 8 , “Chan ges of Cla im,” states that “[a]ny new or different claim, as
opposed to an increase or decrease in the amount of a pending claim or counterclaim, shall be made in writing and filed
with the AA A . . . .” Nation al Constru ction Disp ute Resolution Committee, Construction Industry Dispute Resolution
Procedures (Includin g Med iation and Arbitratio n Rules). T ennessee Code A nnotated , section 29 -5-104 , sets forth
similar requirements for a submission: “The submission shall be by written agreement, general or special, specifying
what demands are to be submitted, the names of the arbitrators or the manner of their selection . . . and the court by
which the judgment on their award is to be rendered.” The written submission should clearly set forth what issues need
to be resolved, thereby providing the arbitrators with the exact disputes to be arbitrated. “The charter of an arbitrator
is the submission and no matter outside the submission may be included in the award.” Local Textile Workers Union
of A m erica, C.I.O. v. Chene y Bros., 109 A.2d 240, 244 (Conn. 1954). In this case, it is undisputed that D&E orally
requested the ad ditional claim of attorne y’s fees.
The spe cific submission made by D&E was the request for the resolution of a contractual payment dispute,
an issue that does indeed involve a “claim or dispute arising out [of] or relating to the contract, or the breach thereof”;
this issue is thus w ithin the sco pe of the a rbitration ag reemen t and wa s properly decided by the pa nel.
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Costs of this appeal are taxed to D&E Construction Co., for which execution shall issue if
necessary.
______________________________
WILLIAM M. BARKER, JUSTICE
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