Carolina Virginia Fashion Exhibitors, Inc. v. Gunter, 7826SC743

• Decision Date: 05 June 1979
• Docket Number: No. 7826SC743,7826SC743
• Citation: 255 S.E.2d 414,41 N.C.App. 407
• Parties: CAROLINA VIRGINIA FASHION EXHIBITORS, INC., a corporation, v. William L. GUNTER and Robert B. Russell, general partners trading and doing business under the name of Charlotte Development Associates, a Limited Partnership.
• Court: North Carolina Court of Appeals

Page 414

255 S.E.2d 414

41 N.C.App. 407

CAROLINA VIRGINIA FASHION EXHIBITORS, INC., a corporation,

v.

William L. GUNTER and Robert B. Russell, general partners trading and doing business under the name of Charlotte Development Associates, a Limited Partnership.

No. 7826SC743.

Court of Appeals of North Carolina.

June 5, 1979.

Harkey, Faggart, Coira & Fletcher by Henry Lee Harkey and Francis M. Fletcher, Jr., and Farris, Mallard & Underwood by Ray S. Farris, Charlotte, for plaintiff-appellant.

Jones, Hewson & Woolard by Harry C. Hewson, Charlotte, for defendants-appellees.

CARLTON, Judge.

In its brief, plaintiff brings forward two "questions involved" from the four assignments of error in the record. The remaining assignments of error are deemed abandoned. Rule 28, N.C. Rules of Appellate Procedure.

Plaintiff contends that the trial court erred in failing to set aside and direct a modification of the arbitrators' award under G.S. 1-567.14(a)(1) in that there was an "evident miscalculation of figures" in paragraph four of the award, and under G.S. 1-567.14(a)(3) in that paragraph six of the award was "imperfect in a matter of form." We think that plaintiffs have misconstrued prevailing case and statutory law with respect to proper trial court and appellate court review of awards submitted to arbitration pursuant to Article 45A, Chapter 1, General Statutes of North Carolina. Plaintiff's brief is devoted exclusively to arguments about the arbitrators' interpretation of the evidence before them and alleged misconception of their legal responsibilities. For reasons stated hereinbelow, such arguments were irrelevant before the trial court and remain so before this Court.

The purpose of arbitration is to settle matters in controversy and avoid litigation. It is well established that parties to an arbitration will not generally be heard to impeach the regularity or fairness of the award. Exceptions are limited to such situations as those involving fraud, misconduct, bias, exceeding of powers and clear illegality. Ordinarily, an award is not vitiated or rendered subject to impeachment because of a mistake or error of the arbitrators as to the law or facts. See 6 C.J.S. Arbitration § 149, Et seq., p. 397. The general rule is that errors of law or fact, or an erroneous decision of matters submitted to the judgment of the arbitrators, are insufficient to invalidate an award fairly and honestly made. 5 Am.Jur.2d, Arbitration and Award, § 167, Et Seq., p. 643.

Of particular importance to this action is the rule that judicial review of an arbitration award is confined to determination of whether there exists one of the specific grounds for vacation of an award under the arbitration statute. 6 C.J.S. Arbitration § 162, p. 427.

The Uniform Arbitration Act was enacted by our legislature and is codified in Article 45A, Chapter 1 of the General Statutes. The pertinent provisions of G.S. 1-567.14, upon which plaintiff relies, provide as follows:

(a) (T)he court shall modify or correct the award where:

(1) There was an evident miscalculation of figures . . .

(3) The award is imperfect in a matter of form, not affecting the merits of the controversy.

(b) If the application is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected. Otherwise, the court shall confirm the award as made.

Plaintiff argues that there was "an evident miscalculation of figures" in paragraph four of the award which provides as follows:

The plaintiff is required and obligated to pay to the defendants two thirds of all ad valorem taxes on the land described in the agreement to lease and the presently existing improvements thereon, all charges for public utility services thereto, and all premiums for fire and extended coverages, public liability insurance and such multiperil coverage as defendants deem necessary in connection with the use of said land and the presently existing improvements thereon.

Plaintiff further argues that paragraph six of the award is "imperfect in a matter of form." It provides, in pertinent part, as follows:

This portion of the award is concerned with the interpretation of paragraph 9 of the agreement to lease and its application to matters at issue referred to in the complaint and in evidence presented . . . .

The practice of the parties indicates they interpreted paragraph 9, as applied to the building as erected and being used, to require the plaintiff to pay two thirds of the maintenance costs to be shared. No issue is presented as to this interpretation.

As applied to the situation in this case we award and declare Maintenance expense to be the costs reasonably necessary to preserve and maintain in good order and repair the building as it has been constructed, added to, modified and altered, and the grounds forming a part of the premises as they have been shaped and landscaped. The building includes, without limitation, the air conditioning and heating systems, elevators, machinery, plumbing, wiring and all equipment used in connection with the building.

Applying our interpretation of paragraph 9, to the particular prayers for relief of plaintiff designated e., f, and g, we award as follows:

The plaintiff is required to pay two thirds of that portion, and only that portion, of the cost of the following items fairly allocable to "shared maintenance expense":

e. The salaries of the maintenance engineer and the assistant maintenance engineer.

f. The administrative expense in connection with the office of defendants' manager located in the building.

g. 1. The purchase or rental of any tools to actually perform maintenance work.

2. The purchase or rental of uniforms or wearing apparel for maintenance employees.

3. The purchase or rental of tools, equipment, materials, or signs to be utilized for the upkeep of grounds.

4. Labor costs attributable to the maintenance of the ground.

5. Mileage and delivery charges.

With respect to paragraph four of the award, we find that plaintiff has shown no "evident miscalculation of figures" as contemplated by G.S. 1-567.14(a) (1). Plaintiff's attempt in the trial court and here amounts to an argument that the arbitrators reached the Wrong result in determining that it was liable...