Carol City Utilities, Inc. v. Gaines Const. Co., 66--361

• Decision Date: 18 July 1967
• Docket Number: No. 66--361,66--361
• Parties: CAROL CITY UTILITIES, INC., a Florida corporation, Appellant, v. GAINES CONSTRUCTION CO., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 242

201 So.2d 242

CAROL CITY UTILITIES, INC., a Florida corporation, Appellant, v. GAINES CONSTRUCTION CO., a Florida corporation, Appellee.

No. 66--361.

District Court of Appeal of Florida, Third District.

July 18, 1967.

Walton, Lantaff, Schroeder, Carson & Wahl and Richard A. Pettigrew, Miami, for appellant.

L. J. Cushman, Miami, for appellee.

Before CHARLES CARROLL, C.J., and BARKDULL and SWANN, JJ.

PER CURIAM.

This cause has heretofore been before the appellate courts of this State. See: State ex rel. Gaines Const. Co. v. Pearson, Fla.1963, 154 So.2d 833, 7 A.L.R.3d 601; Gaines Construction Co. v. Carol City Utilities, Inc., Fla.App.1964, 164 So.2d 270.

Following the opinion and mandate in the latter cause, the trial judge appointed an arbitrator to determine the matters in dispute between the parties to the litigation. Thereafter, the arbitrator entered his arbitration award, determined that the appellee was entitled to certain monies of and from the appellant, and that his fees as arbitrator should be divided equally between the parties together with certain of the costs. Upon the filing of the award, the appellee filed a motion to confirm the award, the arbitrator filed a petition for fees upon which an order was entered fixing the fee of the arbitrator, and thereafter the appellant filed a motion to vacate the award pursuant to the provisions of § 57.22, Fla.Stat., F.S.A.

The matter came on for hearing on the motion to vacate and the motion to confirm. Following hearing, the court denied the motion to vacate and confirmed the award, and an appropriate judgment was duly entered pursuant to § 57.25, Fla.Stat., F.S.A. This appeal ensued.

The appellant has preserved four points for review. First, that the arbitrator was obviously affected in his award by unreasonable and prejudiced conduct by witnesses for the appellee. Second, that the trial court erred in failing to continue the hearing on the motion to vacate upon the ore tenus motion of counsel for the appellant. Third, that the arbitrator considered claims outside the scope of the submission of the arbitration to him. Fourth, that the court erred in determining, on the bare petition of the arbitrator, the amount of his fee.

As to the first point: No prejudice or bias in the entry of the award has been made to appear by the motion to vacate. The proceedings had before the arbitrator are not generally to be examined by a trial court or an appellate court in determining how the arbitrator arrived at his award. See: Ogden v. Baile, 73 Fla. 1103, 75 So. 794; Merritt-Chapman & Scott Corp. v. State Road Department, Fla.1957, 98 So.2d 85. See also: Griffith Company v. San Diego College for Women, 45 Cal.2d 501, 289 P.2d 476, 47 A.L.R.2d 1349. And, these proceedings are not normally part of the award record. See: Ogden v. Baile, supra. It is incumbent upon the party pursuing the motin to vacate to demonstrate bias or prejudice on the part of the arbitrator, and if that burden is not sustained the award will be affirmed. See: 5 Am.Jur.2d, Arbitration and Award, § 186. A review of the record herein reveals the appellant has failed to sustain its burden of proof.

As to the second point: In support of the motion to vacate the award, the appellant tendered an affidavit by a principal of its corporation which contained hearsay statements. At the time of the hearing, counsel for the appellee pointed out that these allegations in the affidavit were insufficient to support the motion. Apparently, the trial court agreed with this contention and thereupon counsel sought to continue the matter to secure live testimony of the persons named in the affidavit. The trial court denied this ore tenus motion, and we fail to find that he abused his discretion in this regard. See: Hall v. Florida State Drainage Land Co., 89 Fla. 312, 103 So. 828; McWhorter v. McWhorter, Fla.App.1960, 122 So.2d 504; State v. Florida State Turnpike Authority, Fla.1961, 134 So.2d 12. As a general proposition, the matter of granting continuances are controlled by the statutes and rules applicable, to wit: § 916.02(2), Fla.Stat., F.S.A.; Rules 1.6(b), Florida Rules of Civil Procedure (1965 Rev.), 30 F.S.A., and are addressed to the sound judicial discretion of the trial court. See: Hall v. Florida State Drainage Land Co., supra; Fain v. Cartwright, 132 Fla. 855, 182 So. 302; Ford v. Ford, 150 Fla. 717, 8 So.2d 495. It is apparent, under the reading of § 57.22(1)(a), Fla.Stat., F.S.A., that some real evidence would have to be presented to a court to establish that the award was 'procured by corruption, fraud, or other undue means;'. This being the criteria in the statute for authorizing a court to vacate an award, it should have been apparent to counsel for the appellant that it would be necessary for him to produce (in support of the motion) evidence which would be admissible in a court of law. Even if affidavits were permitted, certainly only those affidavits that contained matters which would be admissible in a...