Jaffe v. Nocera

• Decision Date: 06 June 1985
• Docket Number: No. 84-497.,84-497.
• Parties: Ronn JAFFE d/b/a Ronn Jaffe Associates, Appellant, v. Ronald Mickey NOCERA d/b/a Papermill Associates, and Columbine Ltd., General Partner of Papermill Associates, Appellees.
• Court: D.C. Court of Appeals

493 A.2d 1003

Ronn JAFFE d/b/a Ronn Jaffe Associates, Appellant, v. Ronald Mickey NOCERA d/b/a Papermill Associates, and Columbine Ltd., General Partner of Papermill Associates, Appellees.

No. 84-497.

District of Columbia Court of Appeals.

Argued April 17, 1985.

Decided June 6, 1985.

COPYRIGHT MATERIAL OMITTED

Arthur T. Kornblut, Washington, D.C., with whom Linda S. Matlin, was on the brief, for appellant.

Daniel M. Litt, Washington, D.C., with whom Neal Goldfarb, Washington, D.C., was on the brief, for appellees.

Before MACK, BELSON and TERRY, Associate Judges.

MACK, Associate Judge:

Following arbitration of a contract dispute between the parties to this appeal, an arbitration panel entered an award of $76,103.71 for the claimant, appellant Ronn Jaffe d/b/a Ronn Jaffe Associates (Jaffe), against "Ronald Mickey Nocera d/b/a Papermill Associates, Columbine, Ltd., General Partner." Jaffe petitioned the Superior Court to confirm the award against Ronald Mickey Nocera (Nocera), Papermill Associates, and Columbine, Ltd., appellees here. Nocera moved to dismiss the award to the extent that the arbitrators intended to hold him personally liable. The trial court granted that motion, confirming the award only as against Papermill and Columbine. Jaffe appeals that decision, and we reverse, finding that Nocera's motion to dismiss was filed outside of the period allowed by the District of Columbia Arbitration Act for motions to vacate arbitration awards, and therefore should not have been entertained by the trial court.

I

On July 31, 1980, the parties entered into a contract for interior design work on the Papermill Condominium project in Georgetown. On the title page of the contract, the "owner" is identified as "Ronald Mickey Nocera, Papermill Associates." On the signature page, however, the "owner" is described as follows:

                      PAPERMILL ASSOCIATES LIMITED
                      PARTNERSHIP
                      COLUMBINE LTD., GENERAL PARTNER
                By:   s/ ________________________________
                      Ronald Mickey Nocera
                

Although not identified as such in the contract, Nocera was the president of Columbine, which in turn was a general partner of Papermill Associates. The Papermill Condominium project was the sole asset of Columbine and Papermill.

Article 11.1 of the contract provides that 141 claims, disputes, and other matters in question between the parties to this Agreement, arising out of or relating to this Agreement or the breach thereof, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. . . ."

In May of 1981, a dispute arose between the parties. Attempts to settle the dispute informally were unavailing, and on March 8, 1982, Jaffe filed a demand for arbitration with the American Arbitration Association (AAA). The respondent on the demand was identified as "Ronald Mickey Nocera d/b/a Papermill Associates Limited Partnership, Columbine Ltd., General Partner." The demand was served upon Nocera personally, and a copy was sent to his lawyer, Philip Horowitz. All of the succeeding correspondence to the parties from the AAA bears the caption "Ronn Jaffe d/b/a Ronn Jaffe Associates and Ronald Mickey Nocera d/b/a Papermill Associates Limited Partnership, Columbine Ltd., General Partner."

Pursuant to its rules, the AAA requested that the parties choose acceptable arbitrators and potential hearing dates. The AAA sent this request both to Jaffe's attorney and to Nocera's attorney, Horowitz. On April 7, 1982, the AAA received a letter from another attorney at Horowitz's law firm, Dorothy Sellers. The letter was captioned "Re: Ronn Jaffe Associates v. Papermill Associates Ltd. Partnership." In the letter, Sellers said that she would be handling the arbitration "on behalf of Papermill Associates" and asked that all correspondence regarding the arbitration be addressed to her rather than to Horowitz. On April 23, 1982, Sellers executed a stipulation agreeing to certain compensation for the arbitrators on behalf of "Nocera/Papermill." Sellers captioned all succeeding correspondence to the AAA, however, as "Jaffe v. Papermill", including a counterclaim ("Papermill v. Jaffe") filed June 2, 1982.

A three-day hearing on the dispute was held in the fall of 1982. Nocera attended two days of the hearings and testified on one of those days. On October 22, 1982, the arbitrators awarded $76,103.71 to Jaffe. The named respondent in the award was "Ronald Mickey Nocera d/b/a Papermill Associates Limited Partnership, Columbine Ltd., General Partner." Pursuant to D.C. Code § 16-4309 (1981), which allows a party to the arbitration to file a motion to modify or correct the award with the arbitrators within 20 days of the award, on November 4, 1982 Sellers filed a timely motion to vacate or correct the award with the arbitrators. That motion did not request relief on the ground that Nocera could not be held personally liable under the contract, however. The motion was denied by the arbitrators on December 2, 1982.

On December 7, 1982, Jaffe's attorney informed Sellers that he intended to enforce the award against Nocera in his personal capacity. On December 10, after the 20-day statutory period for post-award motions to the arbitrators had expired, Sellers sent a letter to the AAA requesting clarification of the award. That letter reads, in part: "[T]he case caption refers to Nocera, Papermill Associates and Columbine. If they are jointly the `respondent,' that would of course affect the assets which might be used to satisfy any judgment entered. Thus, the requested clarification is that the respondent be identified as Papermill Associates Limited Partnership." Although Sellers signed this letter as "attorney for Papermill," it is apparent that the requested relief could inure only to the benefit of Nocera. Following receipt of an objection by Jaffe, the AAA refused to submit this clarification request to the arbitrators, on the ground that the 20-day period had expired.

The Arbitration Act provides that motions to vacate arbitration awards must be filed in the Superior Court "within ninety days after delivery of a copy of the award to the applicant." D.C. Code § 16-4311(b) (1981). Similarly, motions to modify or correct awards must be made within 90 days, id. § 16-4312(a). Accordingly, a petition to vacate or modify the award could have been filed in the Superior Court until January 20, 1983. The arbitrators declined to address the question of Nocera's personal liability on December 14, 1982. Sellers thus had five weeks, from December 14, 1982, until January 20, 1983, to file a motion to vacate the award to the extent that it held Nocera personally liable for the amount owed under the contract. No such motion was filed, however.

On January 5, 1983, Jaffe made official the fact that he intended to confirm the award against Nocera in his personal capacity, filing a petition to confirm the award against Nocera, Papermill and Columbine jointly and severally. Nocera was personally served with a copy of the petition. Even following receipt of the petition, no motion to vacate was filed within the two weeks remaining of the 90-day limitations period. On January 28, 1983, the Papermill Condominium, the sole, asset of Papermill Associates and Columbine Ltd., was sold at a foreclosure sale.

On January 31, 1983, 11 days after the 90-day period for a court challenge to an award had run, attorney Sellers filed a response to the confirmation petition on behalf of "Respondents." As defenses to the petition, she asserted, inter alia, that the arbitrators had exceeded their powers, and that the Superior Court lacked personal and subject matter jurisdiction over Nocera. No defense that Nocera could not be held personally liable on the contract was specifically alleged. No such defense was raised until September 16, 1983, five days before a scheduled hearing on the petition to confirm, when Sellers filed a motion to dismiss the petition on behalf of Nocera.

When the case was called for a hearing, on September 21, 1983, the Honorable Paul F. McArdle sent the case back to the motions court to rule on Nocera's motion to dismiss and on a motion for summary judgment filed by Jaffe. The motion for summary judgment requested that Nocera's defenses to the confirmation petition be dismissed because they were filed after the expiration of the 90-day statute of limitations for motions to vacate or modify arbitration awards. On October 14, 1983, the Honorable Peter Wolf heard arguments on the pending motions and decided to remand the case to the arbitrators for clarification of the identity of the respondent.¹ The arbitrators initially responded to Judge Wolf's inquiry, on December 1, 1983, that although they could have decided the issue of the identity of the parties to the contract since such a matter "arose out of the contract" and "certainly [is a] proper matter for arbitration," they had not decided it because neither party had raised the question.

On January 6, 1984, Judge Wolf directed the arbitrators to decide the identity of the respondent. On January 12, 1984, the arbitrators responded that the demand was filed against Nocera personally; they accordingly had adjudged Nocera personally liable; and since Nocera had raised no objection to the demand to the extent that it sought to hold him liable as a party to the contract, he had waived the objection and should no longer be permitted to raise it.

Judge Wolf disagreed with the arbitrators, and in an Opinion and Order dated March 12, 1984, he found that (1) the caption of the arbitration award was "irrelevant"; (2) Nocera was not on notice that he was a party to the arbitration; (3) Nocera's objections to the award were timely because the motion to vacate filed with the arbitrators tolled the running of the 90-day statute of limitations for Superior Court motions to vacate; (4) Nocera had...