Burton v. Bush, 78-1826

Decision Date07 February 1980
Docket NumberNo. 78-1826,78-1826
Citation614 F.2d 389
PartiesWilliam G. BURTON t/a William Burton Nurseries, Appellant, v. R. E. BUSH; John J. Digges; R. A. Lawson, Jr.; Bush Development Corporation, a Virginia Corporation; Virginia South-Eastern Corporation, a Virginia Corporation; Monroe Construction Corporation, a Virginia Corporation; Baycon Corporation, a Virginia Corporation; All doing business as: The Bush Organization, a General Partnership, Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Samuel Gordon, Gaithersburg, Md. (Robert H. Haslinger, Gordon & Haslinger, Gaithersburg, Md., on brief), for appellant.

S. Leonard Rottman, Baltimore, Md. (Tabor & Rottman, Baltimore, Md., on brief), for appellees.

Before WINTER, RUSSELL and HALL, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

William G. Burton, t/a William Burton Nurseries seeks review of an arbitration panel's award in favor of the appellees The Bush Organization. Burton sued The Bush Organization for failure to make payments as called for under the terms of their contract. The Bush Organization counterclaimed for damages based on the alleged breach of certain guarantees in the contract.

In January and February of 1974 the parties entered into two contracts which required Burton to install trees, shrubs, and sod at the appellee's job site. The relationship between the parties was strained by difficulties encountered during the course of performance. Finally in April of 1975 Bush notified Burton that he was replacing him on the contract work. A dispute arose over Burton's claim of payment for part performance and Bush's claim for breach of warranty. The parties agreed to submit their dispute to an arbitration panel, and on February 6, 1978 an award was rendered in favor of the appellees in the amount of $83,258.35.

The appellant challenged the arbitration award on two grounds. First, Burton contended that the award should be set aside due to unfair surprise and prejudice. When testimony before the arbitration panel concluded on September 8, 1977 all parties agreed that the proceedings would be continued to October 27th. On October 5th Burton's counsel requested a continuance until the latter part of November. Counsel argued that a continuance was necessary in light of the prejudice visited upon his client through the "surprise" testimony of opposition witnesses. This request was denied. Given the facts of this case, such an argument is unbelievable, and was so found by both the arbitration panel and the district court.

When the panel first convened more than two years had elapsed since The Bush Organization had given notice to Burton that his work was unsatisfactory. During this time period Burton was well aware of Bush's complaints. The gist of these complaints was that Burton's trees were dying and his grass would not grow. The obvious theory underlying Bush's claim was that these unfortunate results were caused by Burton's negligence. Since the final demise of the trees and the grass was not in issue, Burton knew or should have known that a proper defense required some showing of alternative causation. Thus, even though the applicable arbitration rules did not provide for pre-trial discovery, and the parties chose to forego any voluntary or gratuitous discovery, it cannot be said that Burton was somehow taken unawares.

An arbitration hearing is not a court of law. Walden v. Local 71, International Brotherhood of Teamsters, (4th Cir. 1972) 468 F.2d 196. When contracting parties stipulate that disputes will be submitted to arbitration, they relinquish the right to certain procedural niceties which are normally associated with a formal trial. Great Scott Markets Inc. v. Local Union No. 337, International Brotherhood of Teamsters, (E.D.Mich.1973) 363 F.Supp. 1351; Commercial Solvents Corporation v. Louisiana Liquid Fertilizer Co., (S.D.N.Y.1957) 20 F.R.D. 359. One of these accoutrements is the right to pre-trial discovery. While an arbitration panel may subpoena documents or witnesses, Commercial Metals Co. v. International Union Marine Corp., (S.D.N.Y.1970) 318 F.Supp. 1334; the litigating part...

To continue reading

Request your trial
27 cases
  • Blue Cross of California v. Superior Court, B122446
    • United States
    • California Court of Appeals Court of Appeals
    • October 6, 1998
    ...they relinquish the right to certain procedural niceties which are normally associated with a formal trial.' (Burton v. Bush, 614 F.2d 389, 390 (4th Cir.1980) [citations]. One of those 'procedural niceties' is the possibility of pursuing a class action under Rule 23. Therefore, absent an ex......
  • Hunt v. Mobil Oil Corp.
    • United States
    • U.S. District Court — Southern District of New York
    • February 23, 1987
    ...84 Hunt v. Mobil Oil Corp., 465 F.Supp. 195, 199 (S.D.N.Y.1978), aff'd without opinion, 610 F.2d 806 (2d Cir.1979). 85 Burton v. Bush, 614 F.2d 389, 390 (4th Cir. 1980) (citations 86 Ferraro Aff., Ex. 30, Tr. March 10, 1982 at 5289-90, 5304-05. 87 Panel Determination, April 7, 1982. 88 Hunt......
  • Cigna Healthcare of St. Louis, Inc. v. Kaiser
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • June 21, 2002
    ...95 F.3d 562, 563 (7th Cir.1996); National Broadcasting Co. v. Bear Stearns & Co., 165 F.3d 184, 190-91 (2d Cir.1999); Burton v. Bush, 614 F.2d 389, 390 (4th Cir.1980); cf. Olympia & York Florida Equity Corp. v. Gould, 776 F.2d 42, 43 (2d Cir.1985) (per curiam); Yeargin Construction Co. v. P......
  • U.S. ex rel. Mpa Const. v. Xl Specialty Ins. Co.
    • United States
    • U.S. District Court — District of Maryland
    • December 22, 2004
    ...(the "policy underpinnings of arbitration [are] speed, efficiency, and reduction of litigation expenses") (quoting Burton v. Bush, 614 F.2d 389 (4th Cir.1980)); Belke v. Merrill Lynch, Pierce, Fenner & Smith, 693 F.2d 1023 (11th Cir.1982) (stating that "[f]ederal law evinces a clear prefere......
  • Request a trial to view additional results
2 books & journal articles
  • The Power of Arbitrators and Courts to Order Discovery in Arbitration-part I
    • United States
    • Colorado Bar Association Colorado Lawyer No. 25-2, February 1996
    • Invalid date
    ...possibly a state act can be used for procedural matters such as issuance of subpoenas. 3. CRS § 13-22-201 et seq. 4. Burton v. Bush, 614 F.2d 389, 390 (4th Cir. 1980). 5. 592 A.2d 980, 981 (Conn. App. 1991). 6. Commercial Solvents Corp. v. Louisiana Liquid Fertilizer Co., 20 F.R.D. 359, 362......
  • Contractual Stipulation for Judicial Review and Discovery in United States-japan Arbitration Contracts
    • United States
    • Seattle University School of Law Seattle University Law Review No. 27-02, December 2003
    • Invalid date
    .... . . except, perhaps, upon a showing of true necessity because of an exceptional situation . . . ." Id. at 718. 40. Burton v. Bush, 614 F.2d 389, 390 (4th Cir 1980) (holding that the parties in arbitration "relinquish the right to certain procedural niceties. . . . One of these accoutremen......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT