NO. COA01-1464
NORTH CAROLINA COURT OF APPEALS
Filed:
1 October 2002
DENISE VANHOY,
Plaintiff,
v.
DUNCAN CONTRACTORS, INC.,
Defendant.
AND
DUNCAN CONTRACTORS, INC.,
Plaintiff,
v.
DENISE VANHOY,
Defendant.
Appeal by Plaintiff from order entered 19 September 2001 by
Judge Clarence E. Horton, Jr., Superior Court, Cabarrus County.
Heard in the Court of Appeals
Richard
Vanhoy.
H.
Robertson,
10 September 2002.
for
plaintiff-appellant,
C.
Denise
Jones, Hewson & Woolard, by Lawrence J. Goldman and Griffin &
Brunson, L.L.P., by Scott I. Perle, for defendant-appellee,
Duncan Contractors, Inc.
WYNN, Judge.
Under the Uniform Arbitration Act, there is no authority for
an arbitrator or court to award attorney's fees after an original
award is made.
N.C. Gen. Stat. § 1-567.10; § 1-567.13(a); §
1-
567.14; Nucor Corp. v. General Bearing Corp., 333 N.C. 148, 423
S.E.2d 747 (1992).
In this case, the arbitrator issued an award on
6 April 2001 providing that each party would be responsible for its
own attorney fees; thereafter on 17 May 2001, the arbitrator issued
a modified award granting Plaintiff $30,000 in attorney's fees.
-2Because the Uniform Arbitration Act does not grant an arbitrator
the authority to modify an existing award to provide for attorney's
fees, we uphold Superior Court Judge Clarence Horton’s order
vacating the modified award.
The facts pertinent to the resolution of this appeal are that
on 6 April 2001, an arbitrator issued an award in favor of
plaintiff but concluded that “each party is responsible for their
own
attorney's
fees.”
However,
the
construction
contract
underlying the arbitrated dispute provided that the prevailing
party in an arbitration proceeding would be entitled to attorney's
fees.
15. Arbitration of Disputes. . . . The party
against whom the award is rendered shall pay
the cost and expense of the arbitration,
including without limitation any filing fees
paid by the other party and the other party’s
attorney’s fees and costs as set forth below.
. . .
18. Attorney’s Fees.
Should either party
employ an attorney to institute suit or demand
arbitration to enforce any of the provisions
hereof, to protect its interest in any matter
arising under this agreement, . . . the
prevailing party shall be entitled to recover
reasonable attorney’s fees, cost, charges, and
expenses expended or incurred therein.
Thus, following the issuance of the original award, plaintiff
requested the arbitrator modify the award to correct “clerical,
typographical, technical or computational errors.” In response, on
17 May 2001, the arbitrator issued a modified award granting
plaintiff $30,000 in attorney's fees. From the trial court’s order
vacating
the
arbitrator’s
modified
award
and
confirming
the
-3original award, plaintiff appeals.
On appeal, plaintiff contends that because “arbitrators have
the same powers as the court to modify or correct an award which is
inconsistent with the parties’ contract”, the trial court erred by
holding that the arbitrator did not have the authority to modify
the original award to grant attorney's fees as provided for under
the parties’ contract.
N.C. Gen. Stat. §
We disagree.
1-567.10 (2001)
permits an arbitrator upon
the application of a party to modify or correct an arbitration
award for the purpose of clarifying the arbitration award, or upon
the grounds stated in subdivisions (1) and (3) of subsection (a) of
G.S. 1-567.14:
(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;
(3) The award is imperfect in a matter of
form, not affecting the merits of the
controversy.
In this case, the modification of the original award to add a grant
of attorney’s fees did not constitute a clarification of the
original award.
Moreover, the arbitrator’s failure to include
attorney's fees in the original award did not constitute a mistake
subject to modification under either subdivisions (1) or (3) of
G.S. 1-567.14(a). Indeed, the arbitrator’s decision not to include
attorney's fees in the original award in this case1 is best summed
1
Defendant argues that Nucor Corp. v. General Bearing Corp.,
333 N.C. 148, 423 S.E.2d 747 (1992) “indicates the arbitrator
could not have awarded attorney fees even if they were included
in the original award.” However, N.C. Gen. Stat. § 1-567.11
-4as follows:
If an arbitrator makes a mistake, either as to
law or fact, it is a misfortune of the party,
and there is no help for it. There is no right
of appeal and the Court has no power to revise
the decisions of “judges who are of the
parties’ own choosing.” An award is intended
to settle the matter in controversy, and thus
save the expense of litigation. If a mistake
be a sufficient ground for setting aside an
award, it opens a door for coming into court
in almost every case; for in nine cases out of
ten some mistake either of law or fact, may be
suggested by the dissatisfied party. Thus ***
arbitration, instead of ending would tend to
increase litigation.
Carolina Virginia Fashion Exhibitors, Inc. v. Gunter, 41 N.C. App.
407, 415, 255 S.E.2d 414, 420 (1979)(quoting Poe & Sons, Inc. v.
University, 248 N.C. 617, 625, 104 S.E.2d 189, 195 (1958)).
We
conclude
attorney's
fees
that
in
the
the
arbitrator’s
original
failure
arbitration
to
award
include
did
not
constitute a ground for modification or vacatur under the Uniform
Arbitration Act.
Accordingly, Judge Horton properly vacated the
modified award and confirmed the original award on the grounds that
the arbitrator was without authority, under N.C. Gen. Stat. §
1-
567.10, to modify his original award to include attorney's fees.
provides “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 the arbitration, shall be paid as provided in the
award.” (emphasis added). Therefore, unless the parties
“specifically agree to and provide for such fees in the
arbitration agreement, attorney fees may not be awarded in an
arbitration award.” Nucor Corp. v. General Bearing Corp., 333
N.C. App. 148, 153, 423 S.E.2d 747, 750 (1992). Thus, by
implication, where parties specifically agree to the provision of
attorneys fees in an arbitration agreement, an arbitrator may
award such fees in an arbitration award.
-5Affirmed.
Judges GREENE and BIGGS concur.
