CLINGAN-IRVINE ASSOC INC V THOMPSON CABINET CO
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STATE OF MICHIGAN
COURT OF APPEALS
CLINGAN-IRVINE ASSOCIATES, INC.,
UNPUBLISHED
April 19, 2002
Plaintiff-Appellee,
v
No. 229259
Mason Circuit Court
LC No. 99-000494-CH
THOMPSON CABINET COMPANY,
Defendant-Appellant.
Before: Gage, P.J., and Griffin and G. S. Buth*, JJ.
PER CURIAM.
Defendant appeals as of right the trial court’s order denying its motion to vacate an
arbitration award and granting plaintiff’s motion to confirm the award. We affirm.
Plaintiff, a roofing company, and defendant entered into a contract for repairs to
defendant’s roof. Defendant refused to pay for the work. Plaintiff placed a lien on defendant’s
property and filed suit to foreclose on the lien in circuit court. The trial court stayed proceedings
pending completion of arbitration.
The parties’ contract required mediation as a prerequisite to arbitration. Plaintiff filed a
request for mediation with the American Arbitration Association (AAA) and submitted the
required fee of $150 per party. Defendant failed to pay its portion of the fee, and the AAA
transferred the matter to arbitration. Ed Thompson, Jr., defendant’s vice president, left the
country on an extended vacation and neither retained an attorney nor gave anyone associated
with defendant the authority to pursue the matter. Plaintiff and the AAA sent notices to
defendant, but the correspondence was returned as undeliverable. The AAA also gave defendant
notice by telephone. Defendant did not send a representative to the arbitration. The arbitrator
ruled that adequate notice had been provided to defendant and the hearing would proceed. The
arbitrator awarded plaintiff $26,455.50 plus costs and prejudgment interest.
Defendant retained counsel and moved to vacate the arbitration award on the grounds that
plaintiff did not pursue mediation as required by the contract, that the arbitration proceeded
without its representative being present, and that plaintiff failed to transcribe the proceedings.
Plaintiff moved to confirm the award. The trial court denied defendant’s motion and granted
plaintiff’s motion, finding that defendant received notice of the arbitration proceedings, but that
* Circuit judge, sitting on the Court of Appeals by assignment.
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Ed Thompson simply chose to absent himself and did not make arrangements for anyone else to
pursue the case on defendant’s behalf. The trial court concluded defendant failed to establish
vacation of the award was warranted under MCR 3.602(J)(1).
Judicial review of a statutory arbitration award is limited. The court may confirm the
award, vacate the award if it was obtained through fraud, duress, or other undue means, or
modify or correct errors apparent on the face of the award. Krist v Krist, 246 Mich App 59, 67;
631 NW2d 53 (2001). The court may vacate an award if: (a) it was procured by fraud,
corruption, or other undue means; (b) there was evident partiality, corruption, or misconduct on
the part of the arbitrator; (c) the arbitrator exceeded his or her powers; or (d) the arbitrator
refused to postpone the hearing on a showing of sufficient cause, refused to hear material
evidence, or otherwise conducted the proceedings in a manner that substantially prejudiced a
party. MCR 3.602(J)(1).
Defendant argues the trial court erred by denying its motion to vacate the arbitration
award and granting plaintiff’s motion to confirm the award. Defendant alleges the proceedings
lacked elementary fairness in that they went forward in the absence of Ed Thompson. We
disagree and affirm the trial court’s decision. The trial court found defendant did not establish
that vacation of the award was warranted under MCR 3.602(J)(1), and denied defendant’s
motion on that basis.
Defendant does not discuss the grounds for vacation of an arbitration award set out in
MCR 3.602(J)(1). Defendant emphasizes that Ed Thompson was out of the country when the
arbitration took place; however, it is not disputed that defendant, the actual party to the
arbitration proceedings, received notice by both mail and telephone of the date of the arbitration.
Arbitration may proceed in a party’s absence if the party, after receiving notice, fails to appear or
seek an adjournment. MCL 600.5011; E.E. Tripp Excavating Contractor, Inc v Jackson County,
60 Mich App 221, 250-251; 230 NW2d 556 (1975). Defendant did not send a representative to
the arbitration or seek an adjournment of the proceedings. Plaintiff had no obligation to seek an
adjournment. No error occurred.
Affirmed.
/s/ Hilda R. Gage
/s/ Richard Allen Griffin
/s/ George S. Buth
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