{ "id": 11916561, "name": "FCR GREENSBORO, INC., Plaintiff v. C & M INVESTMENTS OF HIGH POINT, INC. and C. WAYNE McDONALD, Defendants", "name_abbreviation": "FCR Greensboro, Inc. v. C & M Investments of High Point, Inc.", "decision_date": "1995-07-18", "docket_number": "No. COA94-979", "first_page": "575", "last_page": "578", "citations": [ { "type": "official", "cite": "119 N.C. App. 575" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "400 S.E.2d 468", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "101 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527905 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/101/0483-01" ] }, { "cite": "341 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715201, 4718241, 4716523, 4717616, 4717112 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0590-04", "/nc/315/0590-05", "/nc/315/0590-01", "/nc/315/0590-02", "/nc/315/0590-03" ] }, { "cite": "331 S.E.2d 726", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "731" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 16", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526532 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/76/0016-01" ] }, { "cite": "361 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 798", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726403, 4731173, 4724745, 4725229, 4724083 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0798-02", "/nc/320/0798-03", "/nc/320/0798-05", "/nc/320/0798-01", "/nc/320/0798-04" ] }, { "cite": "355 S.E.2d 815", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 684", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170280 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/85/0684-01" ] }, { "cite": "255 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "419" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 407", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549584 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "414" } ], "opinion_index": 0, "case_paths": [ "/nc-app/41/0407-01" ] }, { "cite": "321 S.E.2d 872", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 224", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757161 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0224-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-567.14", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)(2)" }, { "page": "(a)(2)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-567.13", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-567.12", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "276 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "51 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2645825 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/51/0350-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-567.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 491, "char_count": 8861, "ocr_confidence": 0.714, "pagerank": { "raw": 2.8526729443812434e-07, "percentile": 0.8407907179144422 }, "sha256": "82985ada9fddb583d2cdc16abb03808d663351ef95886b54af32eb3367aa777a", "simhash": "1:43c35d4b444b3486", "word_count": 1391 }, "last_updated": "2023-07-14T17:09:59.579385+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and McGEE concur." ], "parties": [ "FCR GREENSBORO, INC., Plaintiff v. C & M INVESTMENTS OF HIGH POINT, INC. and C. WAYNE McDONALD, Defendants" ], "opinions": [ { "text": "ARNOLD, Chief Judge.\nDefendant contends that the trial court erred in denying defendant\u2019s motion to vacate or modify the arbitration award, and in confirming the award and entering judgment thereon because the arbitrator exceeded his authority by: (1) awarding liquidated damages not within the scope of the parties\u2019 agreement to arbitrate, and (2) awarding monies for changes in the sprinkler system, a controversy not within the scope of the parties\u2019 agreement to arbitrate. We agree.\nThe parties\u2019 arbitration agreement is governed by the Uniform Arbitration Act, N.C. Gen. Stat. \u00a7 1-567.1, el seq. (1983). Generally, parties who have agreed to abide by an arbitrator\u2019s decision will not be heard to attack the regularity or fairness of an award, Thomas v. Howard, 51 N.C. App. 350, 276 S.E.2d 743 (1981), and the trial court must confirm the award unless grounds exist to either vacate or modify the award. N.C. Gen. Stat. \u00a7 1-567.12. Judicial review of an arbitration award is limited to determining whether there exists one of the specific grounds for vacating the award under N.C. Gen. Stat. \u00a7 1-567.13, or modifying the award under N.C. Gen. Stat. \u00a7 1-567.14. Cyclone Roofing Co. v. LaFave Co., 312 N.C. 224, 321 S.E.2d 872 (1984); Fashion Exhibitors v. Gunter, 41 N.C. App. 407, 255 S.E.2d 414 (1979). \u201c[Ojnly awards reflecting mathematical errors, errors relating to form, and errors resulting from arbitrators exceeding their authority shall be modified or corrected by the reviewing courts.\u201d Gunter, 41 N.C. App. at 414, 255 S.E.2d at 419. An award is presumed to be valid, and the party seeking to set it aside must demonstrate an objective basis in the record for concluding that the arbitrator in fact exceeded his authority. Wilson Building Co. v. Thorneburg Hosiery Co., 85 N.C. App. 684, 355 S.E.2d 815, disc. review denied, 320 N.C. 798, 361 S.E.2d 75 (1987).\nDefendant first contends that the parties never agreed to submit to arbitration disputes regarding liquidated damages due for a delay in starting construction, nor did their agreements ever contemplate such liquidated damages. In calculating his award, however, the arbitrator assessed ninety-one days at $750 per day ($68,250) between 1 February 1993 (the date of the parties\u2019 lease amendment) to 12 May 1993 (the date defendants actually began construction), labelling this as \u201cliquidated damages due to delay of beginning construction for [February] 1 amendment.\u201d\nThe duty to arbitrate is contractual, therefore, only disputes which the parties agreed to submit to arbitration may be resolved. Rodgers Builders v. McQueen, 76 N.C. App. 16, 331 S.E.2d 726 (1985), disc. review denied, 315 N.C. 590, 341 S.E.2d 29 (1986). \u201cTo determine whether the parties agreed to submit a particular dispute or claim to arbitration, we must look at the language in the agreement, viz., the arbitration clause, and ascertain whether the claims fall within its scope.\u201d Id. at 23-24, 331 S.E.2d at 731. Upon review of the record, it is apparent that the arbitration agreement, as well as the lease and lease amendment, did not contemplate liquidated damages in the form of delay in starting construction of the facility. In fact, the record is replete with language that \u201cclaimed liquidated damages\u201d were to be calculated only for any delay in the construction of the facility beyond the agreed upon completion date. Furthermore, the record demonstrates plaintiff never even made a request for damages caused by a delay in beginning construction. Therefore, we find defendant has demonstrated an objective basis in the record for concluding that the arbitrator in fact exceeded his authority by awarding upon a matter not submitted to him, and the award should be modified accordingly. See N.C. Gen. Stat. \u00a7 1-567.14(a)(2).\nFurthermore, we agree with defendant\u2019s contention that the trial court also erred by confirming the arbitrator\u2019s award of $8645 \u201cas reimbursement to FCR for additions made to the sprinkler system.\u201d Although public policy favors confirmation of arbitration awards, such awards are not infallible. J.M. Owen Bldg. Contractors v. College Walk, Ltd., 101 N.C. App. 483, 400 S.E.2d 468 (1991). Under N.C. Gen. Stat. \u00a7 1-567.14(a)(2), as demonstrated by the objective evidence provided in the record, the arbitrator awarded on a matter not submitted to him. See Rodgers, 76 N.C. App. 16, 331 S.E.2d 726. No evidence exists to show that reimbursement for sprinkler system additions was ever a part of plaintiffs \u201cclaimed liquidated damages\u201d or \u201cclaimed Tenant change orders\u201d pursuant to the arbitration agreement. Therefore, the arbitrator exceeded his authority, and the trial court improperly confirmed that portion of the award.\nWe therefore remand to the Superior Court of Guilford County to enter judgment vacating the portions of the arbitrator\u2019s award regarding liquidated damages due to delay in beginning construction and reimbursement for additions made to the sprinkler system.\nReversed in part and remanded.\nJudges LEWIS and McGEE concur.", "type": "majority", "author": "ARNOLD, Chief Judge." } ], "attorneys": [ "Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Reid L. Phillips and James G. Adams, II, for plaintiff appellee.", "Elrod Lawing & Sharpless, P.A., by Frederick K. Sharpless, for defendant appellant." ], "corrections": "", "head_matter": "FCR GREENSBORO, INC., Plaintiff v. C & M INVESTMENTS OF HIGH POINT, INC. and C. WAYNE McDONALD, Defendants\nNo. COA94-979\n(Filed 18 July 1995)\nArbitration and Award \u00a7 26 (NCI4th)\u2014 liquidated damages\u2014 money for changes in sprinkler system \u2014 matters not within scope of agreement to arbitrate \u2014 award error\nThe trial court erred in confirming an arbitration award and entering judgment thereon because the arbitrator exceeded his authority by awarding liquidated damages and awarding monies for changes in a sprinkler system, neither of which was within the scope of the parties\u2019 agreement to arbitrate.\nAm Jur 2d, Alternative Dispute Resolution \u00a7\u00a7 234-249.\nAppeal by defendant C & M Investments of High Point, Inc. from judgment entered 20 May 1994 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 22 ' May 1995.\nOn 10 August 1992, plaintiff and defendant entered into a lease in which defendant C & M Investments of High Point, Inc. agreed to construct and lease to plaintiff FCR Greensboro, Inc. a building to be used as a center for plaintiffs recycling operations pursuant to a contract plaintiff had with the City of Greensboro. The lease obligated defendant to complete the facility by 1 March 1993. The lease provided a late penalty of $750 per day for every day beyond 10 March 1993 where the premises were \u201cnot ready for occupancy by Tenant due to events within the Landlord\u2019s control.\u201d\nOn 1 February 1993, one month before the scheduled completion date, plaintiff and defendant entered into a lease amendment that extended the completion date to 15 June 1993, which would automatically extend for \u201cadverse weather conditions not reasonably antici-pable [sic].\u201d Further, the amendment required that the determination of whether such weather conditions were reasonably anticipated be made by an independent party agreeable to both parties. Defendant also agreed to pay plaintiff $750 per day as liquidated damages for \u201cany delay past the completion date.\u201d\nThe lease amendment stated that defendant was to begin construction immediately, but actual construction did not start until 12 May 1993. Plaintiff moved some of its equipment into the facility in August 1993, but did not begin operations until 13 September 1993 despite the construction being incomplete. A Certificate of Occupancy was finally issued to plaintiff on 3 February 1994.\nAfter unsuccessfully demanding payment of liquidated damages from defendant and alleging damages to the facility, plaintiff filed a complaint for declaratory relief, breach of contract, and a preliminary injunction on 3 December 1993. Thereafter, on 30 December 1993, plaintiff and defendant entered into a written arbitration agreement to \u201carbitrate the differences which have arisen between the parties with respect to claimed liquidated damages, claimed weather delays and claimed Tenant change orders under the Lease,\u201d subject to specified conditions set forth in the agreement.\nAn arbitration hearing was held from 5 April to 8 April 1994. The arbitrator issued an Arbitration Award ordering defendant to pay to plaintiff as liquidated damages $121,500 and an additional $8645 as reimbursement to plaintiff for additions made to the facility\u2019s sprinkler system.\nDefendant filed a Motion to Vacate Arbitration Award, and plaintiff subsequently filed a Motion for Confirmation of Arbitration Award and Judgment on Award. The trial court heard the motions and issued an order denying defendant\u2019s motion and granting plaintiff\u2019s motion. The court entered judgment in favor of plaintiff in the amount of $130,145. Defendant appeals.\nBrooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Reid L. Phillips and James G. Adams, II, for plaintiff appellee.\nElrod Lawing & Sharpless, P.A., by Frederick K. Sharpless, for defendant appellant." }, "file_name": "0575-01", "first_page_order": 609, "last_page_order": 612 }