Am. Numismatic Ass'n v. Cipoletti

• Decision Date: 03 March 2011
• Docket Number: No. 09CA2591.,09CA2591.
• Citation: 254 P.3d 1169,31 IER Cases 1861
• Parties: AMERICAN NUMISMATIC ASSOCIATION, Petitioner–Appellee,v.Christopher CIPOLETTI, Respondent–Appellant.
• Court: Colorado Court of Appeals

254 P.3d 1169

31 IER Cases 1861

AMERICAN NUMISMATIC ASSOCIATION, Petitioner–Appellee,

v.Christopher CIPOLETTI, Respondent–Appellant.

No. 09CA2591.

Colorado Court of Appeals, Div. III.

March 3, 2011.

Sears & Swanson, P.C., Hollie L. Wieland, Colorado Springs, Colorado, for Petitioner–Appellee.Mulliken Weiner Karsh Berg & Jolivet, P.C., Gregory M. O'Boyle, Colorado Springs, Colorado, for Respondent–Appellant.Opinion by Judge J. JONES.

The primary issue in this appeal is whether an arbitrator's order dismissing an action on the merits is an “award” within the meaning of the Uniform Arbitration Act of 1975, ch. 154, sec. 1, §§ 13–22–201 to –223, 1975 Colo. Sess. Laws 573–78 (the 1975 Act), notwithstanding that there remains an unresolved question of a party's entitlement to attorney fees and costs under a contractual provision. We conclude that it is. Consequently, we affirm the district court's order denying, as untimely, respondent Christopher Cipoletti's application to vacate the arbitrator's dismissal of his case against petitioner, American Numismatic Association (ANA), because he did not file it within thirty days of the dismissal order, as required by the 1975 Act. We further conclude that the arbitrator did not lose jurisdiction to resolve the attorney fees and costs issues when it issued the award, and therefore affirm that portion of the district court's order confirming the arbitrator's costs award.

I. Background

From June 2002 through October 2007, Mr. Cipoletti was employed as ANA's executive director and general counsel. After ANA terminated Mr. Cipoletti, he filed a demand for arbitration as required by his June 2002 employment agreement, claiming that ANA had breached the employment agreement. ANA denied any breach.

The dispute at arbitration was whether ANA had cause to terminate Mr. Cipoletti. After Mr. Cipoletti presented his case to the arbitrator, ANA moved to dismiss based on after-acquired evidence that Mr. Cipoletti had committed wrongdoing while employed by ANA. In that motion, ANA also requested attorney fees and arbitration costs pursuant to a purported fee- and cost-shifting provision in the employment agreement.

The arbitrator suspended the hearing on Mr. Cipoletti's termination claim so that she could rule on the motion to dismiss before proceeding, if necessary, to hear ANA's defense to the claim. Mr. Cipoletti asserted that the after-acquired evidence was only relevant to the issue of damages, but could not be used to bar his termination claim.

On May 27, 2009, the arbitrator issued a detailed written “Order RE: Respondent's Motion to Dismiss,” granting ANA's motion to dismiss Mr. Cipoletti's “entire case.” The order directed the parties to submit briefs on the appropriateness of ANA's requests for attorney fees and costs under the employment agreement. Both parties submitted briefs.

On July 29, 2009, the arbitrator issued what she captioned as a “Final Award.” Therein, the arbitrator noted that she had “dismissed [Mr. Cipoletti's] case in its entirety” in the May 27, 2009, order. The arbitrator found that Mr. Cipoletti had prosecuted the arbitration “in bad faith,” and therefore granted ANA arbitration costs pursuant to the terms of the employment agreement. She declined, however, to award attorney fees to ANA because the employment agreement did not expressly provide for that remedy. She also “confirmed” that, contrary to Mr. Cipoletti's “renewed argument,” he was not entitled to receive payment from his deferred compensation plan. The final award also stated: “This Award is in full settlement of all the claims and counterclaims submitted to this Arbitration. All claims not expressly granted herein are hereby, denied.”

ANA filed a motion in the district court to confirm the May 27, 2009, order granting ANA's motion to dismiss, and to confirm the July 29, 2009, costs order. See ch. 154, sec. 1, § 13–22–213, 1975 Colo. Sess. Laws 576 (“Upon application of a party, the court shall confirm an award....”). On August 28, 2009, Mr. Cipoletti filed a response and application to vacate both orders. He argued that the arbitrator exceeded her power by going beyond the terms of the employment agreement and the termination letter to dismiss the case. See ch. 154, sec. 1, § 13–22–214(1)(a)(III), 1975 Colo. Sess. Laws 576 (the court shall vacate an award where “[t]he arbitrators exceeded their powers”). ANA contested Mr. Cipoletti's application on the grounds he had not filed it within thirty days of his receipt of a copy of the May 27, 2009, dismissal order, as required by former section 13–22–214(2), ch. 104, sec. 2, 1993 Colo. Sess. Laws 360.

The district court confirmed the May 27, 2009, dismissal order, agreeing with ANA's argument that Mr. Cipoletti's application to vacate this order was untimely because the statutory thirty-day limitations period had run. The court then confirmed the July 29, 2009, costs order, also agreeing with ANA that Mr. Cipoletti had not established any basis for vacating it.

On appeal, Mr. Cipoletti contends that the district court erred in denying his application to vacate the May 27, 2009, dismissal order as untimely because that order was not an “award” subject to confirmation or challenge until the arbitrator ruled on ANA's pending request for attorney fees and costs. In the alternative, he contends that if the dismissal order was an award subject to confirmation or challenge, the arbitrator lacked jurisdiction to rule on ANA's request for attorney fees and costs, and therefore the district court erred in confirming the July 29, 2009, costs order. We reject both contentions.

II. The May 27, 2009, Dismissal Order Was An “Award”

The 1975 Act governs this case. § 13–22–230, C.R.S.2010 (“an arbitration agreement made before August 4, 2004, is governed by the [1975 Act]”).¹

Former section 13–22–214 of the 1975 Act provided: “An application [to vacate an award] shall be made within thirty days after delivery of a copy of the award to the applicant....” Ch. 104, sec. 2, § 13–22–214(2), 1993 Colo. Sess. Laws 360.² The parties disagree about what constitutes an “award” within the meaning of former section 13–22–214, and therefore whether the motion to vacate was filed within thirty days after the delivery of a copy of the “award.”

ANA contends that under the 1975 Act the arbitrator's May 27, 2009, dismissal order and the July 29, 2009, costs order constituted separate “awards,” from which the thirty-day period of former section 13–22–214(2) began to run. Mr. Cipoletti contends that only the July 29, 2009, costs order constituted an “award” for purposes of the time limitation for seeking to vacate an award because the dismissal order did not become final until the arbitrator ruled on ANA's request for attorney fees and costs. We agree with ANA.

A. Standard of Review

The meaning of “award” as used in the 1975 Act is an issue of statutory interpretation. We review such issues de novo. Foiles v. Whittman, 233 P.3d 697, 699 (Colo.2010); Carruthers v. Carrier Access Corp., 251 P.3d 1199, 1203 (Colo.App.2010). “When interpreting a statute, we strive to give effect to the legislative purposes by adopting an interpretation that best effectuates those purposes.” Smith v. Executive Custom Homes, Inc., 230 P.3d 1186, 1189 (Colo.2010). We look first to the plain language of the statute, giving the words and phrases therein their commonly accepted and understood meanings. Id.; Carruthers, 251 P.3d at 1203. “[W]e also consider the statute as a whole so that we may give consistent, harmonious, and sensible effect to all of its parts.” Carruthers, 251 P.3d at 1203; accord Bd. of County Comm'rs v. Costilla County Conservancy Dist., 88 P.3d 1188, 1192 (Colo.2004). If we determine that the statutory language is clear and unambiguous, we will enforce it as written; we will not resort to other rules of statutory construction. Smith, 230 P.3d at 1189; Carruthers, 251 P.3d at 1203. If, however, we determine that the relevant statutory language is ambiguous, we may look to extrinsic evidence of legislative intent. Costilla County Conservancy Dist., 88 P.3d at 1193; Carruthers, 251 P.3d at 1203; see § 2–4–203, C.R.S.2010.

B. Meaning of “Award”

As noted, former section 13–22–214(2) required a party to apply to the court to vacate an arbitration “award” within thirty days after delivery of a copy. Though former section 13–22–210 dictated the form of an award (it was required to be in writing and signed by the arbitrator), neither that section nor any other provision in the 1975 Act defined the term “award.” See ch. 154, sec. 1, §§ 13–22–210, 13–22–213, 1975 Colo. Sess. Laws 575.³ No decision by this court or the Colorado Supreme Court has addressed the meaning of the term, either in the context of the 1975 Act or of the amended Act.

When a statute does not define a term, but the term used is one of common usage, we may refer to dictionary definitions to determine its plain and ordinary meaning. Cerbo v. Protect Colorado Jobs, Inc., 240 P.3d 495, 501 n. 4 (Colo.App.2010); People v. Connors, 230 P.3d 1265, 1267 (Colo.App.2010); see Tidwell v. City & County of Denver, 83 P.3d 75, 82 (Colo.2003). Black's Law Dictionary 157 (9th ed.2009) defines “award” as: “A final judgment or decision, esp. one by an arbitrator or by a jury assessing damages.” Similarly, Webster's Third New International Dictionary 152 (2002) defines “award” as: “a judgment, sentence, or final decision; esp: the decision of arbitrators in a case submitted to them....”

Unfortunately, these definitions do not provide a clear answer to the precise issue before us. Although they equate an “award” with a “final judgment” or “final decision,” they beg the question of what “final” means in this context. They provide some implicit indication that a final judgment or decision is one which resolves the merits of a dispute, but are not sufficiently clear to enable us to conclude with certainty, based solely on...