Marolf Const. Inc. v. Allen's Paving Co.
| Decision Date | 17 December 2002 |
| Docket Number | No. COA02-297.,COA02-297. |
| Citation | 154 NC App. 723,572 S.E.2d 861 |
| Court | North Carolina Court of Appeals |
| Parties | MAROLF CONSTRUCTION INC., Petitioner v. ALLEN'S PAVING COMPANY, Respondent. |
Johnston, Allison & Hord, P.A. by Greg C. Ahlum and Alicia Almeida Bowers, Charlotte, for petitioner-appellee. Gabriel, Berry & Weston, L.L.P. by Richard W. Gabriel and Robert A. Wells, Greensboro, for respondent-appellant.
Respondent appeals from an order entered 16 November 2001 denying respondent's motions to dismiss and confirming an arbitration award. Respondent, a subcontractor, entered into a contract with petitioner, a general contractor, on 23 July 1999.
A dispute arose between the parties, and petitioner chose to pursue a resolution through arbitration. On 6 December 1999, petitioner made a demand for arbitration. Thereafter, the case manager from the American Arbitration Association ("AAA") communicated with the parties by: a letter, sent through regular mail, of a postponement of a deadline; a letter, via facsimile, of appointment of an arbitrator; and a letter, via United Parcel Service ("UPS") overnight delivery, scheduling a preliminary hearing. The case manager sent by certified mail and signed for by Allen Willett ("Willett"), for respondent, Allen's Paving Company, a letter confirming that a preliminary hearing had been held, and notifying respondent of the time and place for the arbitration hearing. Following the hearing, the case manager sent a letter, via certified mail and signed for by Willett for respondent, confirming the hearing was held, and notifying respondent that the arbitrator's decision was due within two weeks. Lastly, the case manager sent the arbitration award, via certified mail and signed for by Willett for respondent. Thereafter, respondent contacted the case manager and asked to have the case re-arbitrated. The AAA responded that it considered the matter closed.
On 22 February 2001, petitioner filed a petition for a confirmation of the arbitration award. Respondent timely filed a response to the petition. Thereafter, respondent filed a motion to dismiss because in the caption of the arbitration award petitioner was referred to as "Marolf Construction Company" and not Marolf Construction, Inc., and a motion to dismiss for lack of service of process and lack of jurisdiction. Petitioner filed a clarification by the arbitrator stating that "Marolf Construction Company" was error, and meant to refer to petitioner, Marolf Construction, Inc. A hearing on the matter was held on 14 November 2001. On 16 November 2001, Judge Marvin K. Gray ordered the arbitration award confirmed for Marolf Construction, Inc., and denied respondent's motions to dismiss. Respondent appeals.
Respondent asserts the trial court erred by (I) failing to vacate the arbitration award for lack of service of process and (II) confirming the arbitration award with correction of petitioner's name.
Respondent asserts the trial court erred by failing to dismiss petitioner's petition for confirmation of the arbitration award due to lack of service of process. Respondent argues the Uniform Arbitration Act, codified in North Carolina General Statutes Chapter 1, Article 45A, controls. Regarding the hearing, the statute provides: "Unless otherwise provided by the agreement: (1) The arbitrators shall appoint a time and place for the hearing and cause notification to the parties to be served personally or by registered mail not less than five days before the hearing." N.C. Gen.Stat. § 1-567.6 (2001) (emphasis added). Regarding notification of the award, the statute provides: "The arbitrators shall deliver a copy to each party personally or by registered mail, or as provided in the agreement." N.C. Gen.Stat. § 1-567.9 (2001) (emphasis added).
Petitioner asserts the contract provided for the rules of the AAA to govern service of process. The contract provided, in pertinent part, that if a dispute should arise between the parties, "then Contractor shall have the option to (a) litigate the matter in a court of competent jurisdiction in Mecklenburg County, N.C., or (b) settle the matter by arbitration in Mecklenburg County, N.C. in accordance with the American Arbitration Association's Construction Industry Arbitration Rules, then in effect."
The AAA's Construction Industry Rule 40, as in effect during this time period, provided for service as follows:
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