Olivera v. Modiano-Schneider, Inc.
| Decision Date | 25 June 1962 |
| Docket Number | INC,MODIANO-SCHNEIDE |
| Court | California Court of Appeals Court of Appeals |
| Parties | Helia OLIVERA, Plaintiff and Appellant, v., a California corporation; Modiano Construction Co., Inc., a California corporation; Eugene S. Schneider, Richard Modiano, Defendants and Respondents. Civ. 25698. |
Manuel Q. Sanz and Sidney L. Gelber, Los Angeles, for appellant.
Earl D. Reese, Sherman Oaks, for respondents.
Plaintiff appeals from an order confirming an arbitration award. Her notice of appeal also states that she appeals from an order denying her motion to vacate the award, but the last mentioned order is not appealable. (Hyatt v. Eckel Valve Co., 169 Cal.App.2d 35, 39, 336 P.2d 551.) She contends that the evidence was uncontradicted that the amount of her damages was far in excess of the amount of the award, and that attorney's fees and costs should have been awarded to her.
On November 27, 1957, the plaintiff (a physician), as owner of land, and the Modiano Construction Co., Inc., as contractor, entered into a written agreement whereby the contractor agreed to construct a medical building on the land for the amount of $29,000. The contract provided, among other things, that any controversy or claims arising out of the contract 'shall be settled by arbitration in accordance with the Rules of the American Arbitration Association,' and that judgment upon the award of the arbitrators might be entered. The contract also provided: 'Should either party hereto bring suit in court to enforce the terms hereof any judgment awarded shall include court costs and reasonable attorney's fees to the successful party.'
On December 2, 1958, the plaintiff, as owner, and Modiano-Schneider, Inc., as contractor, entered into a written contract whereby the contractor agreed to construct a second story on part of the building referred to in the former contract. The contract price was $5,800. The contract provided, among other things, that all questions as to the rights and obligations under the contract, and the plans and specifications are subject to arbitration; that in case of dispute either party may make a demand for arbitration by filing such a demand with the other; that a decision of the arbitrators 'shall be a condition precedent to any right of legal action'; that the arbitrators, if they deem that the case demands it, are authorized to award to the party whose contention is upheld such sums as they shall deem proper for the time, expense, and trouble incident to the appeal; that the arbitrators shall fix their own compensation, and shall assess costs and charges of the arbitration against either or both parties. The contract contained the same provision as the former contract relative to costs and attorney's fees in the event either party should bring suit in court.
On October 28, 1959, the owner commenced an action against the contractors for damages for breach of the contracts, alleging that they failed to complete the building and to comply with the plans and specifications. In that action the owner sought to recover $41,375 as compensatory damages, $50,000 as punitive damages, and $3,500 as attorney's fees.
In their answer, the contractors denied the allegations as to breach of contracts, and they alleged that the contracts provided that all questions as to the rights and obligations arising under the contracts are subject to arbitration; and that the plaintiff had not made written demand for arbitration.
On May 18, 1960, the owner filed, in the office of the American Arbitration Association in New York, a demand for arbitration. The claims of the owner or the relief sought by her, as stated in the demand, were as follows: Completion, or costs of completion, of the medical building in accordance with the plans and specifications. Loss in rental value and rental income since the date the building was to be completed. Loss of income (from X-ray, laboratory, physiotherapy, and general practice) due to delay in construction of the building. Loss of use of money paid for land, building, and equipment by reason of the delay. Cost of X-ray equipment required to be replaced on account of acts, or omissions, of the contractors. 'Loss in value of building as built compared to value of building as contracted for.' Costs, expenses, losses, including attorney's fees, arbitration costs and independent surveys in connection with the contracts. Punitive damages. All further proper relief. Relief for breach of contract and for fraud.
A counterclaim allegedly filed by the contractors is not in the record on appeal.
The parties selected three arbitrators from a list submitted by the arbitration association, and the parties agreed that the controversies should be resolved by regarding the contractors as one party.
Four arbitration hearings were held, and on November 10, 1960, two of the arbitrators made and signed an award. (It does not appear whether the other arbitrator participated in the hearings.) The award was as follows: The contractors shall pay to the owner $5,795. The owner shall deliver a third deed of trust to the contractors to secure the $3,800 note (note referred to in contract of December 2). The owner shall make all payments of principal and interest due to date on all notes and shall release to the contractors all money held by Sutro and Company (finance company). Each party shall pay his own attorney's fees. The fees and expenses of the arbitration association, in the total amount of $1,785.50, shall be borne equally. The award is in full settlement of all claims filed by either party.
The contractors made a motion for an order confirming the award; and the owner made a motion for an order vacating the award.
Although the order denying the motion to vacate the award is not appealable, it may be reviewed on the appeal from the order confirming the award. (Hyatt v. Eckel Valve Co., supra, 169 Cal.App.2d p. 39, 336 P.2d 551.)
The motion for an order vacating the award was made on the ground that 'the arbitrators exceeded their powers and so imperfectly executed them, that a mutual, final and definite...
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...Cal.App.2d 91, 64 Cal.Rptr. 714; Crofoot v. Blair Holdings Corp., 119 Cal.App.2d 156, 185, 260 P.2d 156; Olivera v. Modiano-Schneider, Inc., 205 Cal.App.2d 9, 14, 23 Cal.Rptr. 30.) In Morris v. Zuckerman, Supra, 257 Cal.App.2d 91, 95, 64 Cal.Rptr. 714, 716, the court rejected the contention......
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...powers, or so imperfectly executing those powers that a mutual, final and definite award has not been made (Olivera v. Modiano-Schneider, Inc., 205 Cal.App.2d 9, 14, 23 Cal.Rptr. 30), for their determination is conclusive upon the court as well as the parties. None of these exceptions to th......
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