{ "id": 8411351, "name": "WMS, INC., CELLULAR PLUS OF NORTH CAROLINA, INC., and DAVID KILPATRICK, Plaintiffs v. JERRY W. WEAVER, ALLTEL COMMUNICATIONS, INC., and ALLTEL COMMUNICATIONS OF THE CAROLINAS, INC., Defendants", "name_abbreviation": "WMS, Inc. v. Weaver", "decision_date": "2004-10-05", "docket_number": "No. COA03-1063", "first_page": "352", "last_page": "369", "citations": [ { "type": "official", "cite": "166 N.C. App. 352" } ], "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": "600 S.E.2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631528, 12631529 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/600/0469-02", "/se2d/600/0469-01" ] }, { "cite": "358 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631456, 12631529, 12631527 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/599/0407-01", "/se2d/600/0469-01", "/se2d/600/0468-02" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-567.11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.Y. C.P.L.R. \u00a7 7513", "category": "laws:leg_act", "reporter": "N.Y.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-667.11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "opinion_index": 0 }, { "cite": "2003 N.C. Sess. Laws 983", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "2003 N.C. Sess. Laws 973", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "weight": 2, "year": 2003, "opinion_index": 0 }, { "cite": "110 N.M. 478", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716968 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "483-84" }, { "page": "272-73" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0478-01" ] }, { "cite": "586 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "803", "parenthetical": "noting that it is well settled in this jurisdiction that any contention not raised and argued in the trial court may not be raised and argued for the first time in an appellate court" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8958518 ], "year": 2003, "pin_cites": [ { "page": "699", "parenthetical": "noting that it is well settled in this jurisdiction that any contention not raised and argued in the trial court may not be raised and argued for the first time in an appellate court" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0697-01" ] }, { "cite": "N.Y. C.RL.R. \u00a7 7513", "category": "laws:leg_act", "reporter": "N.Y.", "opinion_index": 0 }, { "cite": "196 F. Supp. 2d 343", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9436209 ], "year": 2002, "pin_cites": [ { "page": "364-65", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/196/0343-01" ] }, { "cite": "172 S.E. 319", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "year": 1934, "pin_cites": [ { "page": "322" }, { "parenthetical": "quoting Wesley A. Sturges, Commercial Arbitration and Awards, at 524-25 (1930)" } ], "opinion_index": 0 }, { "cite": "205 N.C. 618", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630628 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/nc/205/0618-01" ] }, { "cite": "276 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "746" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2645825 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "353-54" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0350-01" ] }, { "cite": "300 S.E.2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1983, "pin_cites": [ { "page": "577" }, { "page": "577" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 305", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520720 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0305-01" ] }, { "cite": "423 S.E.2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "750" }, { "page": "750" } ], "opinion_index": 0 }, { "cite": "333 N.C. 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550326 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/333/0148-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-567.13", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2001, "pin_cites": [ { "page": "(a)(5)" } ], "opinion_index": 0 }, { "cite": "462 S.E.2d 816", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "823" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 336", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915614 ], "year": 1995, "pin_cites": [ { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0336-01" ] }, { "cite": "343 F.3d 355", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9096783 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "358-59" }, { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/f3d/343/0355-01" ] }, { "cite": "124 S. Ct. 102", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2003, "pin_cites": [ { "parenthetical": "\"Judgment vacated, and case remanded to the Court of Appeal of California, . . ., for further consideration in light of Green Tree Fin. Corp. v. Bazzle, 539 U.S. [444], 156 L. Ed. 2d 414, 123 S. Ct. 2402 (2003).\"" } ], "opinion_index": 0 }, { "cite": "157 L. Ed. 2d 12", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "pin_cites": [ { "parenthetical": "\"Judgment vacated, and case remanded to the Court of Appeal of California, . . ., for further consideration in light of Green Tree Fin. Corp. v. Bazzle, 539 U.S. [444], 156 L. Ed. 2d 414, 123 S. Ct. 2402 (2003).\"" } ], "opinion_index": 0 }, { "cite": "540 U.S. 801", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8898242, 8898186, 8898507, 8898350, 8898295, 8898426 ], "year": 2003, "pin_cites": [ { "parenthetical": "\"Judgment vacated, and case remanded to the Court of Appeal of California, . . ., for further consideration in light of Green Tree Fin. Corp. v. Bazzle, 539 U.S. [444], 156 L. Ed. 2d 414, 123 S. Ct. 2402 (2003).\"" } ], "opinion_index": 0, "case_paths": [ "/us/540/0801-02", "/us/540/0801-01", "/us/540/0801-06", "/us/540/0801-04", "/us/540/0801-03", "/us/540/0801-05" ] }, { "cite": "539 U.S. 444", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8898136 ], "weight": 12, "year": 2003, "pin_cites": [ { "page": "447" }, { "page": "419" }, { "page": "422" }, { "page": "422-23" }, { "page": "455" }, { "page": "424" }, { "page": "423-24" } ], "opinion_index": 0, "case_paths": [ "/us/539/0444-01" ] }, { "cite": "18 U.S.C. \u00a7 1961", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "opinion_index": 0 }, { "cite": "385 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "556" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 312", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521830 ], "year": 1989, "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0312-01" ] }, { "cite": "478 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "521" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 548", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11890143 ], "year": 1996, "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0548-01" ] }, { "cite": "500 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "111", "parenthetical": "quoting Bicket v. McLean Sec., Inc., 124 N.C. App. 548, 553, 478 S.E.2d 518, 521 (1996)" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 525", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651300 ], "year": 1998, "pin_cites": [ { "page": "528", "parenthetical": "quoting Bicket v. McLean Sec., Inc., 124 N.C. App. 548, 553, 478 S.E.2d 518, 521 (1996)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0525-01" ] }, { "cite": "116 F.R.D. 622", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 7857839 ], "year": 1987, "pin_cites": [ { "page": "626", "parenthetical": "\"Plaintiffs seek to recover treble damages from defendants measured by the alleged overcharge resulting from defendants' conspiracy to fix prices.\"" } ], "opinion_index": 0, "case_paths": [ "/frd/116/0622-01" ] }, { "cite": "69 Fed. Appx. 659", "category": "reporters:federal", "reporter": "Fed. Appx.", "year": 2003, "opinion_index": 0 }, { "cite": "233 F. Supp. 2d 819", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 11380411 ], "year": 2002, "pin_cites": [ { "page": "826", "parenthetical": "\"[A] private plaintiff would have standing to sue for treble damages measured by that portion of a PMI payment that is excessive . . . .\"" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/233/0819-01" ] }, { "cite": "429 U.S. 477", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6310 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "485-86", "parenthetical": "\"It nevertheless is true that the treble-damages provision, which . . . measures the awards by a multiple of the injury actually proved, is designed primarily as a remedy.\"" }, { "page": "710", "parenthetical": "\"It nevertheless is true that the treble-damages provision, which . . . measures the awards by a multiple of the injury actually proved, is designed primarily as a remedy.\"" }, { "page": "696", "parenthetical": "\"It nevertheless is true that the treble-damages provision, which . . . measures the awards by a multiple of the injury actually proved, is designed primarily as a remedy.\"" } ], "opinion_index": 0, "case_paths": [ "/us/429/0477-01" ] }, { "cite": "476 U.S. 409", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 13005 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "415", "parenthetical": "\"The shipper claimed treble damages measured by the difference between the rates set pursuant to agreement and those that had previously been in effect.\"" }, { "page": "420", "parenthetical": "\"The shipper claimed treble damages measured by the difference between the rates set pursuant to agreement and those that had previously been in effect.\"" }, { "page": "1926", "parenthetical": "\"The shipper claimed treble damages measured by the difference between the rates set pursuant to agreement and those that had previously been in effect.\"" } ], "opinion_index": 0, "case_paths": [ "/us/476/0409-01" ] }, { "cite": "108 S. Ct. 1302", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1988, "opinion_index": 0 }, { "cite": "99 L. Ed. 2d 512", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "opinion_index": 0 }, { "cite": "485 U.S. 993", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 13338, 13319, 13802, 13327, 13969, 13554, 13882 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/485/0993-04", "/us/485/0993-03", "/us/485/0993-06", "/us/485/0993-02", "/us/485/0993-05", "/us/485/0993-07", "/us/485/0993-01" ] }, { "cite": "827 F.2d 1119", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1754002 ], "year": 1987, "pin_cites": [ { "page": "1142" } ], "opinion_index": 0, "case_paths": [ "/f2d/827/1119-01" ] }, { "cite": "364 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568878 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0590-01" ] }, { "cite": "358 S.E.2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "129", "parenthetical": "internal citations omitted; quoting D. Dobbs, Law of Remedies, \u00a7 4.1, at 224 (1973)" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 390", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12131931 ], "year": 1987, "pin_cites": [ { "page": "393-94", "parenthetical": "internal citations omitted; quoting D. Dobbs, Law of Remedies, \u00a7 4.1, at 224 (1973)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0390-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 66-154", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(b)", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "18 U.S.C. \u00a7 2520", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(c)(2)(A)" } ], "opinion_index": 0 }, { "cite": "15 U.S.C. \u00a7 1117", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "(a)", "parenthetical": "authorizing award of both actual damages and the Lanham Act violator's ill-gotten profits" } ], "opinion_index": 0 }, { "cite": "17 U.S.C. \u00a7 504", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 2000, "pin_cites": [ { "page": "(b)", "parenthetical": "emphasis added" }, { "page": "(c)(1)" } ], "opinion_index": 0 }, { "cite": "64 F.3d 993", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7415147 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "999", "parenthetical": "emphasis added" }, { "page": "998" } ], "opinion_index": 0, "case_paths": [ "/f3d/64/0993-01" ] }, { "cite": "489 U.S. 468", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12032439 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "479" }, { "page": "500" }, { "page": "1255-56" } ], "opinion_index": 0, "case_paths": [ "/us/489/0468-01" ] }, { "cite": "514 U.S. 52", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1340190 ], "weight": 9, "year": 1995, "pin_cites": [ { "page": "53-54" }, { "page": "82" }, { "page": "85" }, { "page": "86" }, { "page": "87" }, { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/us/514/0052-01" ] }, { "cite": "9 U.S.C.A. \u00a7 10", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2004, "pin_cites": [ { "page": "(a)(4)" } ], "opinion_index": 0 }, { "cite": "9 U.S.C. \u00a7 10", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "(a)(4)" } ], "opinion_index": 0 }, { "cite": "9 U.S.C. \u00a7 2", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "opinion_index": 0 }, { "cite": "513 U.S. 265", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1331547 ], "weight": 7, "year": 1995, "pin_cites": [ { "page": "272" }, { "page": "763" }, { "page": "838" }, { "page": "277" }, { "page": "766" }, { "page": "841" } ], "opinion_index": 0, "case_paths": [ "/us/513/0265-01" ] }, { "cite": "255 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "419-20" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 407", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549584 ], "year": 1979, "pin_cites": [ { "page": "414-15" } ], "opinion_index": 0, "case_paths": [ "/nc-app/41/0407-01" ] }, { "cite": "321 S.E.2d 872", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "879" }, { "page": "880" } ], "opinion_index": 0 }, { "cite": "312 N.C. 224", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757161 ], "year": 1984, "pin_cites": [ { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0224-01" ] }, { "cite": "538 U.S. 401", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9030821 ], "weight": 14, "year": 2003, "pin_cites": [ { "page": "407" }, { "page": "583" }, { "page": "1536" } ], "opinion_index": 0, "case_paths": [ "/us/538/0401-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-16.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 75-16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 75-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2003, "opinion_index": 0 } ], "analysis": { "cardinality": 1495, "char_count": 42352, "ocr_confidence": 0.742, "pagerank": { "raw": 3.435890492699338e-07, "percentile": 0.8793908447944262 }, "sha256": "57b152d02ff89d14c6e572679e4f4b63ce6ab5592fcfef2af9896831f1bf89d9", "simhash": "1:cb9edd243c058672", "word_count": 6848 }, "last_updated": "2023-07-14T18:02:59.875915+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and ELMORE concur." ], "parties": [ "WMS, INC., CELLULAR PLUS OF NORTH CAROLINA, INC., and DAVID KILPATRICK, Plaintiffs v. JERRY W. WEAVER, ALLTEL COMMUNICATIONS, INC., and ALLTEL COMMUNICATIONS OF THE CAROLINAS, INC., Defendants" ], "opinions": [ { "text": "GEER, Judge.\nThis appeal arises out of the challenge of defendants Alltel Communications, Inc. and Alltel Communications of the Carolinas, Inc. (collectively \u201cAlltel\u201d) to an arbitration award in favor of plaintiff Cellular Plus of North Carolina, Inc. (\u201cCellular Plus\u201d). The trial court ruled that the arbitration panel had no authority under the parties\u2019 arbitration agreement to award treble damages, but that the panel could properly award attorneys\u2019 fees. The parties have each appealed. We hold that the trial court erred in setting aside the treble damages award, but affirm the trial court\u2019s ruling as to the attorneys\u2019 fees.\nFactual Background\nOn 19 December 2000, plaintiffs WMS, Inc. (\u201cWMS\u201d), Cellular Plus, and David Kilpatrick filed suit in Wake County Superior Court against defendants Alltel and Jerry W. Weaver, asserting various claims arising out of business dealings between the parties, including a claim for unfair and deceptive trade practices under N.C. Gen. Stat. \u00a7 75-1.1 (2003). Cellular Plus and Alltel had entered into a dealer agreement dated 4 June 1999 (the \u201cAgreement\u201d). Pursuant to the Agreement, Cellular Plus, an independent dealer, agreed to market Alltel\u2019s wireless cellular communication services in exchange for payment of commissions by Alltel.\nOn 8 January 2001, defendants moved to compel arbitration pursuant to the Agreement. Section 16.19 of the Agreement provided:\nArbitration: (a) Any controversy, dispute, or claim arising out of [or] relating to this contract, the relations between ALLTEL and [Cellular Plus], or the Service provided by ALLTEL, including but not limited to a claim based on or arising from an alleged tort or a dispute as to the applicability of this provision to any dispute, shall be settled by arbitration administered by the American Arbitration Association under its Wireless Industry Arbitration rules, (b) The arbitrator may not vary the terms of the parties\u2019 agreement, (c) All statutes of limitations which would otherwise be applicable in a judicial action brought by a party shall apply to any arbitration and shall be given effect by the arbitrators. (d) Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof, (e) The arbitrator shall have no authority to award punitive damages or any other damages not measured by the prevailing party\u2019s actual damages, nor shall any party seek punitive damages relating to any matter arising out of this contract in any other forum, (f) All claims shall be arbitrated individually, and there shall be no consolidation or class treatment of any claim, (g) The parties expressly agree that, notwithstanding the foregoing, in the event either party believes the Agreement has been or will be unlawfully terminated and emergency relief is required, such party may apply to the American Arbitration Association therefor under its \u201cOptional Rules for Emergency Measures of Protection.\u201d\nOn 15 February 2001, the trial court entered an order concluding \u201cthat all of the claims alleged in the Amended Complaint are governed by the arbitration clause\u201d and directing plaintiffs to \u201cpursue their claims with the American Arbitration Association pursuant to the terms of the arbitration clause].]\u201d\nOn 10 October 2002, following an evidentiary hearing, the three-member arbitration panel issued a \u201cPosthearing Order,\u201d stating, \u201c[t]he parties have stipulated and the Arbitrators direct\u201d that (1) the hearing would remain open for submission of briefs, oral arguments, and submission of other exhibits; and (2) \u201c[t]o the extent that the Arbitrators may deem it appropriate to make an award of attorneys fees, counsel for the parties will be requested, not later than the close of the oral arguments on November 25, 2002, to submit affidavits with respect to same.\u201d In a second \u201cPosthearing Order,\u201d dated 26 November 2002, the panel stated that if it found defendants liable under N.C. Gen. Stat. \u00a7 75-1.1, it would enter an interim award by 25 December 2002 \u201con all issues except for any award of Attorney\u2019s fees.\u201d If the panel decided that an award of attorneys\u2019 fees would be appropriate, the panel would receive affidavits from counsel for all parties on the issue of attorneys\u2019 fees and an \u00e1ward would be entered no later than 31 January 2003.\nOn 23 December 2002, the panel issued an \u201cInterim Award.\u201d Pursuant to an agreement between the parties, the Interim Award contained no specific findings of fact. The award dismissed all claims asserted by plaintiffs WMS and Kilpatrick, as well as all claims asserted against defendant Weaver. In the award, the arbitrators concluded that Alltel had breached the Agreement and that Alltel had \u201cengaged in unfair and deceptive acts and practices under Section 75-1.1 of the General Statutes of North Carolina.\u201d The arbitrators awarded Cellular Plus damages in the amount of $962,500.00, \u201csaid amount to be trebled in accordance with Section 75-16 of the General Statutes ... to make the award $2,887,500[.]\u201d With respect to attorneys\u2019 fees, the interim award provided:\n(7) This award shall be deemed to be an interim award pending consideration by the Panel of Arbitrators of a further award to [Cellular Plus], pursuant to Section 75-16.1 of the General Statutes of North Carolina, allowing a reasonable attorney fee to the attorneys representing [Cellular Plus]. Pursuant to the consent and stipulation of the parties at the oral arguments held in this case on November 25, 2002, counsel for [Cellular Plus] and counsel for [Alltel] shall submit to the Panel not later than January 15, 2003, affidavits of said counsel, together with affidavits of third parties having knowledge of facts pertinent to the issue, if any, with respect to (1) the reasonableness of the amount of the attorneys\u2019 fees and expenses charged by [Cellular Plus\u2019] counsel as set out in the affidavits submitted to the Panel and to opposing counsel by [Cellular Plus\u2019] counsel on November 25, 2002 and (2) whether there was an unwarranted refusal by [Alltel] to fully resolve the matter constituting the basis of the claims in this case. Pursuant to the consent and stipulation of the parties at the oral arguments held in this case on November 25, 2002, the Panel will consider and make a decision and an award on said issues based upon said affidavits. A Final Award in this arbitration proceeding, with respect to attorneys fees, if any, will be entered not later than January 31, 2003.\n(Emphasis added)\nOn 31 January 2003, the arbitrators issued a \u201cFinal Award\u201d in which they concluded \u201cthat there was an unwarranted refusal by [Alltel] to fully resolve the matter . . . under Section 75-1.1 of the General Statutes].]\u201d The arbitrators, therefore, awarded Cellular Plus attorneys\u2019 fees in the amount of $352,640.00. The Final Award provided that the parties would pay equally the administrative fees and expenses of the American Arbitration Association and the compensation and expenses of the arbitrators totaling $91,515.13.\nOn 3 February 2003, Alltel filed a motion in Wake County Superior Court, requesting that the court either (1) vacate the arbitrators\u2019 interim and final awards \u201con the grounds that the arbitrators exceeded their powers in awarding [Cellular Plus] treble damages and attorneys\u2019 fees,\u201d or (2) modify the arbitrators\u2019 interim and final awards to eliminate the awards of treble damages and attorneys\u2019 fees. On 13 February 2003, Cellular Plus moved the trial court to confirm the arbitrators\u2019 interim and final awards.\nThe trial court concluded, in pertinent part:\n5. The arbitration panel did not have the authority under Section 16.19(e) of the parties\u2019 Arbitration Agreement to award treble damages to Plaintiffs pursuant to N.C. Gen. Stat. \u00a7 75-16 based on the finding of unfair and deceptive trade practices. Plaintiffs do not cite to any evidence that Defendants waived this issue by participating in the arbitration of it, and a review of the arbitration proceedings and the filings in this matter reveal that Defendants did challenge the authority of the arbitration panel to deal with the issue.of treble damages at the hearing on that issue.\n6. The arbitration panel did not have the authority pursuant to Section 16.19(a) of the parties\u2019 Arbitration Agreement and Rules R-41 and R-4[8] of the Wireless Industry Arbitration Rules to award attorneys\u2019 fees to Plaintiffs pursuant to N.C. Gen. Stat. \u00a7 75-16.1.\n7. While as a preliminary matter the arbitration panel did not have the authority noted in CONCLUSION OF LAW # 6 to award attorneys\u2019 fees pursuant to the agreement, Defendants waived the right to contest the authority of the arbitration panel to address this matter by fully arguing the attorneys\u2019 fees issue before the arbitration panel without contending that the arbitrators lacked authority to decide that issue and without preserving that argument for further judicial review. As such, Defendants have waived the right to challenge the award of attorneys\u2019 fees on judicial review of the award.\nBased on these conclusions, the trial court modified the arbitrators\u2019 award to provide for an award to Cellular Plus in the amount of $962,500.00 in actual damages. The court declined to alter the award of attorneys\u2019 fees. The trial court subsequently denied Cellular Plus\u2019 motion pursuant to Rule 59, asking the court to reinstate the treble damages award based on a 7 April 2003 decision of the United States Supreme Court, PacifiCare Health Sys., Inc. v. Book, 538 U.S. 401, 155 L. Ed. 2d 578, 123 S. Ct. 1531 (2003).\nOn 30 April 2003, Cellular Plus filed a notice of appeal from the portion of the trial court\u2019s order vacating the arbitrators\u2019 award of treble damages. On 16 May 2003, Alltel filed its notice of cross-appeal from the portion of the order confirming the arbitrators\u2019 award of attorneys\u2019 fees. We address Cellular Plus\u2019 appeal and Alltel\u2019s cross-appeal in turn.\nSince this appeal arises from a decision on a motion to confirm an arbitration award, we first note \u201cthat a strong policy supports upholding arbitration awards.\u201d Cyclone Roofing Co. v. David M. LaFave Co., 312 N.C. 224, 234, 321 S.E.2d 872, 879 (1984). As our Supreme Court has stressed:\n\u201cThere is no right of appeal and the Court has no power to revise the decisions of \u2018judges who are of the parties\u2019 own choosing.\u2019 An award is intended to settle the matter in controversy, and thus save the expense of litigation. If a mistake be a sufficient ground for setting aside an award, it opens the door for coming into court in almost every case; for in nine cases out of ten some mistake either of law or fact may be suggested by the dissatisfied party. Thus . . . arbitration instead of ending would tend to increase litigation.\u201d\nId. at 236, 321 S.E.2d at 880 (quoting Carolina-Virginia Fashion Exhibitors, Inc. v. Gunter, 41 N.C. App. 407, 414-15, 255 S.E.2d 414, 419-20 (1979)).\nI\nAs the trial court recognized, this case presents a preliminary question: Does the Federal Arbitration Act (\u201cFAA\u201d) or does the North Carolina Uniform Arbitration Act govern the issues on this appeal? This question cannot be bypassed as the FAA preempts conflicting state law, including state law addressing the role of courts in reviewing arbitration awards. Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 272, 130 L. Ed. 2d 753, 763, 115 S. Ct. 834, 838 (1995). If the FAA requires that a particular question be determined by the arbitrators, while state law would allow a court to address the issue, the FAA controls. We must, therefore, first determine whether the parties\u2019 arbitration agreement falls under the FAA.\nThe FAA governs any \u201ccontract evidencing a transaction involving commerce.\u201d 9 U.S.C. \u00a7 2 (2000). Under Allied-Bruce, the FAA\u2019s term \u201cinvolving commerce\u201d is considered the functional equivalent of \u201caffecting commerce.\u201d Allied-Bruce, 513 U.S. at 277, 130 L. Ed. 2d at 766, 115 S. Ct. at 841. It is broader than the term \u201cin commerce\u201d and \u201csignals an intent to exercise Congress\u2019 commerce power to the full.\u201d Id. The trial court concluded below that the FAA governs in this case. While the parties hedge their bets on appeal, they have not directly challenged the trial court\u2019s determination. In addition, we see no basis in the record for any conclusion other than that the contract at issue evidences a transaction involving commerce. The FAA, therefore, controls. As a result, this Court is bound, in deciding this appeal, by decisions of the United States Supreme Court construing and applying the FAA.\nThe FAA allows a court to vacate an award \u201cwhere the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.\u201d 9 U.S.C. \u00a7 10(a)(4) (2000), amended by Act of May 7, 2002, 9 U.S.C.A. \u00a7 10(a)(4) (West Supp. 2004). Defendants asked the trial court to vacate the arbitration award in this case on the grounds that the arbitration panel did not have the power, under the parties\u2019 contract, to award treble damages. Defendants rely on the provision in their arbitration agreement stating: \u201cThe arbitrator shall have no authority to award punitive damages or any other damages not measured by the prevailing party\u2019s actual damages, nor shall any party seek punitive damages relating to any matter arising out of this contract in any other forum.\u201d\nIn Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 131 L. Ed. 2d 76, 115 S. Ct. 1212 (1995), the United States Supreme Court addressed an issue almost identical to the one presented here. The defendant in Mastrobuono had moved to vacate an arbitration award that included punitive damages, arguing that the arbitrators had, in awarding punitive damages, exceeded their power under the arbitration agreement. The Supreme Court characterized the question presented as \u201cwhether the arbitrators\u2019 award is consistent with the central purpose of the [FAA] to ensure \u2018that private agreements to arbitrate are enforced according to their terms.\u2019 \u201d Id. at 53-54, 131 L. Ed. 2d at 82, 115 S. Ct. at 1214 (quoting Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479, 103 L. Ed. 2d 488, 500, 109 S. Ct. 1248, 1255-56 (1989)).\nThe Supreme Court first observed that the parties\u2019 contract did not expressly preclude punitive damages. Id. at 59, 131 L. Ed. 2d at 85, 115 S. Ct. at 1217. The defendant pointed to two provisions that it contended, when read together, necessarily led to the conclusion that the arbitrators were barred from awarding punitive damages. The Supreme Court, however, concluded that those provisions were not \u201can unequivocal exclusion of punitive damages claims,\u201d id. at 60, 131 L. Ed. 2d at 86, 115 S. Ct. at 1217, but rather rendered the arbitration agreement ambiguous, id. at 62, 131 L. Ed. 2d at 87, 115 S. Ct. at 1218. The Court then applied the principles that (1) ambiguities as to the scope of an arbitration clause must be resolved in favor of arbitration, and (2) a court should construe ambiguous language in a contract against the interest of the party that drafted it. Based on this analysis, it held that \u201c[t]he arbitral award should have been enforced as within the scope of the contract.\u201d Id. at 64, 131 L. Ed. 2d at 88, 115 S. Ct. at 1219. The Court accordingly reversed the decision vacating the award. Id.\nCourts have since interpreted Mastrobuono as holding \u201cthat arbitrators presumptively enjoy the power to award punitive damages unless . . . the arbitration contract unequivocally excludes punitive damages claims.\u201d See, e.g., Gateway Tech., Inc. v. MCI Telecomm. Corp., 64 F.3d 993, 999 (5th Cir. 1995) (emphasis added). Under Mastrobuono, an arbitrator does not exceed his powers if (1) state law allows the remedy for the specified cause of action, and (2) the arbitration contract does not unequivocally preclude it. Id. at 998. When these two requirements are met, the award falls \u201cunder the arbitrator\u2019s broad discretion to decide damages and fashion remedial relief.\u201d Id.\nThere is no dispute in this case that North Carolina law allows an award of treble damages in an unfair and deceptive trade practices case. N.C. Gen. Stat. \u00a7 75-16 (2003). Under Mastrobuono, we must next determine whether the parties\u2019 arbitration agreement unequivocally precludes an award of treble damages.\nAlthough the words \u201ctreble damages\u201d do not appear in the parties\u2019 agreement, defendants contend that the phrase \u201cany other damages not measured by the prevailing party\u2019s actual damages\u201d unambiguously refers to treble damages because, according to defendants, it could not refer to anything else. Since there are a host of damages remedies \u201cnot measured by the prevailing party\u2019s actual damages,\u201d we disagree with defendants\u2019 contention.\nStatutory remedies are the most prevalent type of such damages. For example, the Copyright Act provides that \u201c[t]he copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.\u201d 17 U.S.C. \u00a7 504(b) (2000) (emphasis added). Alternatively, the statute permits, upon the copyright owner\u2019s election, an award of statutory damages \u201cnot less than $750 or more than $30,000 as the court considers just\u201d unless the court finds that the infringement was committed willfully, in which case \u201cthe court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.\u201d 17 U.S.C. \u00a7 504(c)(1) & (2) (2000). Neither the infringer\u2019s profits nor the statutory damages are \u201cdamages measured by the prevailing party\u2019s actual damages[.]\u201d See also 15 U.S.C. \u00a7 1117(a) (2000) (authorizing award of both actual damages and the Lanham Act violator\u2019s ill-gotten profits); 18 U.S.C. \u00a7 2520(c)(2)(A) & (B) (2000) (with respect to any entity\u2019s unlawful interception, disclosure, or intentional use of a wire or electronic communication, allowing a court to assess as damages the greater of actual damages and \u201cany profits made by the violator as a result of the violation\u201d or \u201cstatutory damages of whichever is the greater of $100 a day for each day of violation or $10,000\u201d); N.C. Gen. Stat. \u00a7 66-154(b) (2003) (emphasis added) (for violation of the North Carolina Trade Secrets Protection Act, allowing an award \u201cmeasured by the economic loss or the unjust enrichment caused by misappropriation of a trade secret, whichever is greater\u201d).\nIn addition to statutory remedies not measured by actual damages, defendants have also overlooked restitutionary awards. As this Court has explained:\n\u201cThe restitution claim, on the other hand, is not aimed at compensating the plaintiff, but at forcing the defendant to disgorge benefits that it would be unjust for him to keep.\u201d A plaintiff may receive a windfall in some cases, but this is acceptable in order to avoid any unjust enrichment on the defendant\u2019s part. The principle of restitution \u201cis to deprive the defendant of benefits that in equity and good conscience he ought not to keep .. . even though plaintiff may have suffered no demonstrable losses.\u201d\nBooher v. Frue, 86 N.C. App. 390, 393-94, 358 S.E.2d 127, 129 (1987) (internal citations omitted; quoting D. Dobbs, Law of Remedies, \u00a7 4.1, at 224 (1973)), aff\u2019d per curiam, 321 N.C. 590, 364 S.E.2d 141 (1988). For example, damages awarded under a theory of restitution may be measured by the increased value of the assets unlawfully in the hands of the defendant or by the profits earned by the defendant. 1 Dan B. Dobbs, Dobbs Law of Remedies \u00a7 4.1(4), at 566-67 (2d ed. 1993). Neither of these types of damages are measured by a plaintiffs actual damages.\nFinally, defendants have also overlooked \u201cpresumed damages.\u201d In a defamation per se case, under appropriate circumstances (as dictated by First Amendment considerations), some courts have held a plaintiff may recover \u201cpresumed damages\u201d without proof of actual damages. Thus, in Brown & Williamson Tobacco Corp. v. Jacobson, 827 F.2d 1119, 1142 (7th Cir. 1987), cert. denied, 485 U.S. 993, 99 L. Ed. 2d 512, 108 S. Ct. 1302 (1988), the Seventh Circuit held that a tobacco company was entitled to $1,000,000.00 in presumed damages despite its inability to prove that it had suffered any actual loss or other actual damages.\nThis summary of available \u201cdamages\u201d remedies demonstrates a wide variety of damages awards that would fall within the scope of the disputed phrase. The question remains, however, whether \u201ctreble damages\u201d also unequivocally falls within the scope of the phrase.\nPlaintiffs argue that because treble damages are a multiple of actual damages, they are \u201cmeasured by\u201d actual damages. This is a reasonable construction. Courts have routinely referred to treble damages as being measured by actual damages. See, e.g., Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 415, 90 L. Ed. 2d 413, 420, 106 S. Ct. 1922, 1926 (1986) (\u201cThe shipper claimed treble damages measured by the difference between the rates set pursuant to agreement and those that had previously been in effect.\u201d); Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485-86, 50 L. Ed. 2d 701, 710, 97 S. Ct. 690, 696 (1977) (\u201cIt nevertheless is true that the treble-damages provision, which . . . measures the awards by a multiple of the injury actually proved, is designed primarily as a remedy.\u201d); Moore v. Radian Group, Inc., 233 F. Supp. 2d 819, 826 (E.D. Tex. 2002) (\u201c[A] private plaintiff would have standing to sue for treble damages measured by that portion of a PMI payment that is excessive . . . .\u201d), aff\u2019d, 69 Fed. Appx. 659 (5th Cir. 2003); In re Chlorine & Caustic Soda Antitrust Litigation, 116 F.R.D. 622, 626 (E.D. Pa. 1987) (\u201cPlaintiffs seek to recover treble damages from defendants measured by the alleged overcharge resulting from defendants\u2019 conspiracy to fix prices.\u201d). Plaintiffs also reasonably suggest that if the parties truly had intended to limit damages only to actual damages, the contract would simply say \u201cthe arbitrator shall have no authority to award damages in excess of actual damages.\u201d Given the. unusual phrasing of the provision and the fact that courts have previously described \u201ctreble damages\u201d as being measured by actual damages, we hold both that plaintiff\u2019s interpretation is plausible and that, in any event, there is no unequivocal exclusion of treble damages, as required by Mastrobuono.\nThis discussion is not meant to conclude that plaintiff\u2019s construction of the disputed phrase is correct. It is simply a reasonable one, as is defendants\u2019. When a contract is \u201c \u2018fairly and reasonably susceptible to either of the constructions asserted by the parties[,]\u2019 \u201d then it is deemed ambiguous. Barrett Kays & Assocs., P.A. v. Colonial Bldg. Co., 129 N.C. App. 525, 528, 500 S.E.2d 108, 111 (1998) (quoting Bicket v. McLean Sec., Inc., 124 N.C. App. 548, 553, 478 S.E.2d 518, 521 (1996)). If ambiguous, then \u201c \u2018interpretation of the contract is for the jury.\u2019 \u201d Id. (quoting Int\u2019l Paper Co. v. Corporex Constructors, Inc., 96 N.C. App. 312, 317, 385 S.E.2d 553, 556 (1989). Here, it is necessary to determine whether the question should be resolved by the arbitrators, who were the triers-of-fact, or by the courts.\nMastrobuono suggests that a conclusion that the contract term is ambiguous should lead to the holding that the arbitrators did not exceed their powers. More recent cases by the United States Supreme Court support this view of Mastrobuono by holding that the interpretation of ambiguous contract terms not involving a gateway question of arbitrability is a question for the arbitrators unless the arbitration agreement provides otherwise. In PacifiCare Health Sys., Inc. v. Book, 538 U.S. 401, 155 L. Ed. 2d 578, 123 S. Ct. 1531 (2003), plaintiffs argued that they could not be compelled to arbitrate claims arising under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. \u00a7 1961 (2000), because their arbitration agreement with the defendant prohibited an arbitrator from awarding treble damages. After observing that the terms of the contract \u2014 precluding an award of \u201cpunitive damages\u201d or \u201cextra contractual damages of any kind\u201d\u2014 were ambiguous when applied to treble damages, the Court held that the question \u201cwhether the remedial limitations at issue here prohibit an award of RICO treble damages is not a question of arbi-trability.\u201d PacifiCare, 538 U.S. at 407 n.2, 155 L. Ed. 2d at 584 n.2, 123 S. Ct. at 1536 n.2. The Court, therefore, declined to address the issue when it had not first been considered by the arbitrator. Id. at 407, 155 L. Ed. 2d at 583, 123 S. Ct. at 1536.\nPacifiCare was followed by Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 156 L. Ed. 2d 414, 123 S. Ct. 2402 (2003). In Green Tree, the Court was presented with the question whether an arbitration agreement barred class arbitration. The Court held that it could not resolve the question \u201cbecause it is a matter for the arbitrator to decide.\u201d Id. at 447, 156 L. Ed. 2d at 419, 123 S. Ct. at 2405. The Court explained:\nUnder the terms of the parties\u2019 contracts, the question \u2014 whether the agreement forbids class arbitration \u2014 is for the arbitrator to decide. The parties agreed to submit to the arbitrator \u201call disputes, claims, or controversies arising from or relating to this contract or the relationships which result from this contract.\u201d And the dispute about what the arbitration contract in each case means (i.e., whether it forbids the use of class arbitration procedures) is a dispute \u201crelating to this contract\u201d and the resulting \u201crelationships.\u201d Hence the parties seem to have agreed that an arbitrator, not a judge, would answer the relevant question.\nId. at 451-52, 156 L. Ed. 2d at 422, 123 S. Ct. at 2407 (internal citations omitted). The Court acknowledged, however, that questions of arbi-trability \u2014 such as the validity of an arbitration clause or its applicability to the underlying dispute between the parties \u2014 were questions to be decided by the courts. Id. at 452, 156 L. Ed. 2d at 422-23, 123 S. Ct. at 2407.\nIn this case, as in Green Tree, the parties agreed broadly that \u201c[a]ny controversy, dispute, or claim arising out of [or] relating to this contract, the relations between ALLTEL and Agent, or the Service provided by ALLTEL... shall be settled by arbitration...The interpretation of the provision precluding an award of \u201cdamages not measured by the prevailing party\u2019s actual damages\u201d is a dispute \u201crelating to this contract\u201d and, by the terms of the arbitration agreement, must be \u201csettled by arbitration.\u201d The issue does not fall into the narrow exception recognized in Green Tree because PacifiCare has already held that interpretation of a remedies provision \u201cis not a question of arbitrability.\u201d PacifiCare, 538 U.S. at 407 n.2, 155 L. Ed. 2d at 584 n.2, 123 S. Ct. at 1536 n.2.\nDefendants have argued that Green Tree is not binding because it is a four-judge plurality opinion. We are, however, still bound to follow Green Tree, as the Supreme Court indicated in Hughes Elecs. Corp. v. Garcia, 540 U.S. 801, 157 L. Ed. 2d 12, 124 S. Ct. 102 (2003) (\u201cJudgment vacated, and case remanded to the Court of Appeal of California, . . ., for further consideration in light of Green Tree Fin. Corp. v. Bazzle, 539 U.S. [444], 156 L. Ed. 2d 414, 123 S. Ct. 2402 (2003).\u201d). Moreover, the federal courts have found the plurality opinion to be the controlling precedent since it represents the position taken by the justices who concurred on the narrowest grounds. See, e.g., Pedcor Mgmt. Co. v. Nations Personnel of Texas, Inc., 343 F.3d 355, 358-59 (5th Cir. 2003). The Fifth Circuit explained, id. at 358, that Justice Stevens\u2019 concurrence was not the narrowest ground and that Justice Stevens had, in any event, stated that \u201carguably the interpretation of the parties\u2019 agreement should have been made in the first instance by the arbitrator, rather than the court,\u201d and that \u201cJustice Breyer\u2019s opinion expresses a view of the case close to my own.\u201d Green Tree, 539 U.S. at 455, 156 L. Ed. 2d at 424, 123 S. Ct. at 2408-09.\nAdditionally, defendants contend that Green Tree does not apply to appeals from arbitration awards, but rather is only applicable in the context of a motion to compel arbitration. Defendants have, however, overlooked the fact that Green Tree was an appeal from the South Carolina Supreme Court\u2019s affirmance in two separate cases of a trial court\u2019s confirmation of an arbitration award. In one of the cases, the trial court had certified a class action and then compelled arbitration resulting in a class award, while in the second case, the question of class certification was initially decided by the arbitrator. On appeal, the South Carolina Supreme Court construed the arbitration agreements to authorize class arbitration. The United States Supreme Court vacated the judgments because, as explained above, the decision regarding class certification was a question for the arbitrator. Even though a class had been certified in one case by the arbitrator, the Court ruled that because the arbitrator\u2019s determination followed the earlier trial court decision,\nthere is at least a strong likelihood . . . that the arbitrator\u2019s decision reflected a court\u2019s interpretation of the contracts rather than an arbitrator\u2019s interpretation. That being so, we remand the case so that the arbitrator may decide the question of contract interpretation \u2014 thereby enforcing the parties\u2019 arbitration agreements according to their terms.\nId. at 454, 156 L. Ed. 2d at 423-24, 123 S. Ct. at 2408. In other words, if the arbitrator had made his decision completely independently of the courts, as here, the award would have been confirmed. The procedural posture of this case does not materially differ from that of Green Tree.\nEven if Green Tree is disregarded, Carteret County v. United Contractors of Kinston, Inc., 120 N.C. App. 336, 347, 462 S.E.2d 816, 823 (1995), compels the conclusion that our courts have no authority to vacate the arbitration award of treble damages. In United Contractors, plaintiff asked the trial court to vacate an arbitration award on the grounds that the parties\u2019 contract prohibited the arbitrator\u2019s award of increased overhead expenses. In rejecting this argument, this Court reasoned:\nIn this case, the arbitration agreement reads: \u201cAny contro1 versy or Claim arising out of or related to the Contract, or the breach thereof, shall be settled by arbitration Here, whether defendant would be entitled to increased overhead expenses due to the extension of the contract completion date is an issue arising out of the contract and falls within the scope of the arbitration agreement. Since the arbitrators had the power to rule on the issue, even if they erroneously considered evidence of increased overhead expenses it would not be ground to vacate the award.\nId. Although this decision construes N.C. Gen. Stat. \u00a7 1-567.13(a)(5) (2001) and not the FAA, it is consistent with Green Tree.\nWe hold that the parties\u2019 arbitration agreement with its remedial limitation is ambiguous and that the arbitrators, therefore, had the authority to construe that provision. Neither the trial court nor this Court may vacate the arbitration award based on a disagreement with the arbitrators about the proper construction of the contract\u2019s term. Accordingly, we hold that the trial court erred in modifying the arbitrators\u2019 award to eliminate the award of treble damages.\nII\nAlltel cross-appeals from the portion of the trial court\u2019s order confirming the arbitrators\u2019 award to Cellular Plus of $352,640.00 in attorneys\u2019 fees. As noted above, although the trial court concluded that the arbitration panel did not have the authority under the agreement to award attorneys\u2019 fees, it ruled that Alltel had waived the right to contest the authority of the arbitration panel by failing to argue to the arbitrators that they lacked authority to award fees. Because we agree with the trial court\u2019s determination that Alltel waived its right to contest the arbitration panel\u2019s authority to award attorneys\u2019 fees, we need not decide whether an award of attorneys\u2019 fees was permitted by the parties\u2019 agreement.\nOur review of the record reveals that at arbitration, Alltel opposed Cellular Plus\u2019 application for attorneys\u2019 fees solely on the basis that such an award was not warranted under N.C. Gen. Stat. \u00a7 75-16.1 (2003). In the arbitration proceeding, Alltel never raised the issue whether the panel lacked authority to award fees and never objected to the panel\u2019s consideration of such an award, despite several clear opportunities to do so. First, one of the arbitrators stated at the conclusion of the evidence that the panel intended to consider awarding attorneys\u2019 fees. Second, the arbitrators\u2019 Posthearing Order indicated that they \u201cmay deem it appropriate to make an award of attorneys fees[.]\u201d Finally, the arbitrators, in their interim award, instructed the parties to submit affidavits \u201cwith respect to (1) the reasonableness of the amount of the attorneys\u2019 fees . . . and (2) whether there was an unwarranted refusal by [Alltel] to fully resolve the matter [.]\u201d This interim award stated that the arbitrators would consider these affidavits, and \u201c[p]ursuant to the consent and stipulation of the parties . . . will consider and make a decision and an award [regarding attorneys\u2019 fees] ... based upon said affidavits.\u201d (Emphasis added) Significantly, at the conclusion of its memorandum in opposition to Cellular Plus\u2019 application for attorneys\u2019 fees, Alltel implored the arbitration panel to \u201cexercise its discretion to award [Cellular Plus] no attorneys\u2019 fees under N.C.G.S. \u00a7 75-1.1.\u201d (Emphasis added)\nDefendants rely upon Nucor Corp. v. General Bearing Corp., 333 N.C. 148, 423 S.E.2d 747 (1992). In Nucor, our Supreme Court held that \u201c[t]he specific, uncomplicated language of N.C.G.S. \u00a7 1-567.11 clearly reflects the legislative intent that attorneys\u2019 fees are not to be awarded for work performed in arbitration proceedings, unless the parties specifically agree to and provide for such fees in the arbitration agreement.\u201d Id. at 153-54, 423 S.E.2d at 750. Defendants argue that since the arbitration agreement at issue in this case did not specifically permit attorneys\u2019 fees, Nucor required that the trial court vacate the arbitrators\u2019 award of fees.\nNucor did not address the situation when, as here, both parties have consented to consideration of the attorneys\u2019 fee issue by the arbitration panel and no party lodged any objection to the panel\u2019s awarding fees. Indeed, to agree with defendants\u2019 argument, we would have to disregard the policies upon which Nucor is based, as well as established North Carolina authority barring a party from raising objections in confirmation proceedings that could have been, but were not, raised prior to or during the arbitration proceeding.\nIn Nucor, the Supreme Court reached its holding in reliance upon \u201cimportant policy considerations,\u201d including promotion of the purpose of arbitration \u201cto provide and encourage an expedited, efficient, relatively uncomplicated, alternative means of dispute resolution, with limited judicial intervention or participation, and without the primary expense of litigation \u2014 attorneys\u2019 fees.\u201d Id. at 154, 423 S.E.2d at 750. As support, the Court cited Cyclone Roofing, discussed above, McNeal v. Black, 61 N.C. App. 305, 300 S.E.2d 575 (1983), and Thomas v. Howard, 51 N.C. App. 350, 276 S.E.2d 743 (1981).\nIn McNeal, this Court held that a party\u2019s \u201cparticipation in the arbitration without making any protest or demand for jury trial... waived any right to object to the award later on these grounds.\u201d 61 N.C. App. at 307, 300 S.E.2d at 577. The Court noted that \u201c[a] party may waive a constitutional as well as a statutory benefit by express consent, by failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it.\u201d Id. Based on these principles and the purpose of arbitration to reach a final settlement of disputed matters without litigation, the Court held that a party \u201ccannot be allowed to participate in arbitration, raising no objections, and then refuse to be bound by an adverse award. This type of conduct would serve to defeat the purpose of arbitration.\u201d Id. at 308, 300 S.E.2d at 577. In Thomas, this Court held, applying identical reasoning, that a party could not seek to vacate an arbitration award based on the bias of an arbitrator if the party, knowing of the grounds for disqualification, did not object at the arbitration proceeding. 51 N.C. App. at 353-54, 276 S.E.2d at 746.\nLikewise, in Andrews v. Jordan, 205 N.C. 618, 172 S.E. 319 (1934), the Supreme Court held that the defendants waived any objection to the arbitrators\u2019 failure to comply with statutorily prescribed deadlines. The Court noted that defendants were notified of the hearing dates, made no objection and, indeed, agreed to those dates. Id. at 624, 172 S.E. at 322. In concluding that the defendants had waived any right to attack the award, the Court held \u201c \u2018if the parties participate in the arbitral hearing without objection to the point that a time limitation has expired it will be held generally that they have thereby waived the time provision.\u2019 \u201d Id. (quoting Wesley A. Sturges, Commercial Arbitration and Awards, at 524-25 (1930)).\nHere, there is no question that defendants could have argued to the arbitrators that the parties\u2019 agreement together with Nucor precluded any award of attorneys\u2019 fees. Instead of doing so, they litigated plaintiffs entitlement to fees. We can see no meaningful distinction between a failure to object to an award of attorneys\u2019 fees and a failure to object to arbitration generally, to the timeliness of the hearing dates, or to the bias of an arbitrator. If, as our courts have held, a failure to object during arbitration regarding these significant matters leads to waiver, then defendants here necessarily waived any right to seek vacation of the attorneys\u2019 fee award. See also McDaniel v. Bear Stearns & Co., 196 F. Supp. 2d 343, 364-65 (S.D.N.Y. 2002) (internal citations omitted) (\u201cCourts have held that, consistent with [N.Y. C.RL.R. \u00a7 7513], arbitrators may award attorneys\u2019 fees if either (1) the parties\u2019 agreement to arbitrate so provides, or (2) the parties acquiesce to the payment of attorneys\u2019 fees .... Although [defendant] argued that its actions did not warrant a sanction, it never raised a legal objection to the award of attorneys\u2019 fees. Because [defendant] never maintained, as it does here, that attorneys\u2019 fees are unlawful, it implicitly conceded that it was within the Panel\u2019s authority to award such fees.\u201d). Cf. Wood v. Weldon, 160 N.C. App. 697, 699, 586 S.E.2d 801, 803 (2003) (noting that it is well settled in this jurisdiction that any contention not raised and argued in the trial court may not be raised and argued for the first time in an appellate court), disc. review denied, 358 N.C. 550, 600 S.E.2d 469 (2004). We therefore hold that the trial court properly confirmed the arbitrators\u2019 award of attorneys\u2019 fees.\nReversed in part and affirmed in part.\nJudges BRYANT and ELMORE concur.\n. Plaintiff has also suggested that nominal damages fall within the scope of \u201cdamages not measured by the prevailing party\u2019s actual damages.\u201d Since nominal damages tend to be in the amount of $1.00, it seems unlikely that the parties had nominal damages in mind when they entered into the agreement. Nevertheless, we note that the New Mexico Supreme Court has affirmed an award of $5,000.00 in \u201cnominal damages.\u201d Ruiz v. Varan, 110 N.M. 478, 483-84, 797 P.2d 267, 272-73 (1990). Such an award is not, of course, measured by actual damages.\n. Although the General Assembly has repealed N.C. Gen. Stat. \u00a7 1-567.13 through \u00a7 1-567.20, see Act to Repeal the Uniform Arbitration Act and to Enact the Revised Uniform Arbitration Act, ch. 345, sec. 1, 2003 N.C. Sess. Laws 973 (July 14, 2003), the statutory changes affect only arbitration agreements made on or after 1 January 2004. See id., ch. 345, sec. 4, 2003 N.C. Sess. Laws 983.\n. N.C. Gen. Stat. \u00a7 1-667.11 (2001) states: \u201cUnless otherwise provided in the agreement to arbitrate, the arbitrators\u2019 expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.\u201d\n. N.Y. C.P.L.R. \u00a7 7513 is identical to N.C. Gen. Stat. \u00a7 1-567.11.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Herring, McBennett, Mills & Finkelstein, P.L.L.C., by Mark A. Finkelstein and Stephen W. Petersen, for plaintiffs-appellants/cross-appellees.", "Womble Carlyle Sandridge & Rice, P.L.L.C., by Burley B. Mitchell, Jr., Pressly M. Millen, and Sean E. Andrussier, for defendants-appellees/cross-appellants Alltel Communications, Inc. and Alltel Communications of the Carolinas, Inc." ], "corrections": "", "head_matter": "WMS, INC., CELLULAR PLUS OF NORTH CAROLINA, INC., and DAVID KILPATRICK, Plaintiffs v. JERRY W. WEAVER, ALLTEL COMMUNICATIONS, INC., and ALLTEL COMMUNICATIONS OF THE CAROLINAS, INC., Defendants\nNo. COA03-1063\n(Filed 5 October 2004)\n1. Arbitration and Mediation\u2014 ambiguous arbitration agreement \u2014 authority to construe\nThe trial court erred by modifying an arbitration panel\u2019s award to eliminate treble damages on an unfair trade practices claim where the arbitration agreement was ambiguous and the arbitrators had the authority to construe the remedial provision. Neither the trial court nor the appellate court may vacate the arbitration award based on a disagreement with the arbitrators about the proper construction of the contract\u2019s term.\n2. Arbitration and Mediation\u2014 attorney fees \u2014 issue not raised at arbitration \u2014 waived\nDefendant Alltel waived its right to contest an arbitration panel\u2019s authority to award attorney fees by not raising the issue at arbitration. Defendant opposed the fees based on whether they were warranted under N.C.G.S. \u00a7 75-16, but did not object to the panel\u2019s consideration of the issue despite several opportunities to do so.\nAppeal by plaintiff Cellular Plus of North Carolina, Inc. and cross-appeal by defendants Alltel Communications, Inc. and Alltel Communications of the Carolinas, Inc. from the order and judgment entered 24 April 2003 by Judge Ripley E. Rand in Wake County Superior Court. Heard in the Court of Appeals 28 April 2004.\nHerring, McBennett, Mills & Finkelstein, P.L.L.C., by Mark A. Finkelstein and Stephen W. Petersen, for plaintiffs-appellants/cross-appellees.\nWomble Carlyle Sandridge & Rice, P.L.L.C., by Burley B. Mitchell, Jr., Pressly M. Millen, and Sean E. Andrussier, for defendants-appellees/cross-appellants Alltel Communications, Inc. and Alltel Communications of the Carolinas, Inc." }, "file_name": "0352-01", "first_page_order": 382, "last_page_order": 399 }