The opinion
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STATE ‘OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. CV-99- 178
DHM-KEM~ 5]I7 Jace
STEPHEN W. WESTON,
Petitioner
Vv. DECISION AND ORDER
KAREN M. BURKE,
Respondent
This matter is before the court on petitioner’s motion to vacate award of Fee
Arbitration Panel, plaintiffs application for modification or correction of Fee
Arbitration Panel award, respondent’s motion to dismiss petitioner’s application to
modify or correct award, and for Rule 11 sanctions, and respondent’s motion to
dismiss petitioner’s motion to vacate award of Fee Arbitration Panel and for Rule 11
sanctions.
On October 21, 1998, petitioner initiated a petition for arbitration of fee dispute
with the Fee Arbitration Commission Panel of the Board of Overseers of the Bar. In
it, the petitioner agreed to binding arbitration thereby waiving his legal right to
initiate relief in a court. His petition further agreed that the court having
jurisdiction may enter a judgment upon the award. After hearings at which it
considered testimony and exhibits, the Fee Arbitration Panel issued an award and
determination dated April 21, 1999, which was filed with the Board of Overseers of
the Bar on April 28, 1999. On July 27, 1999, petitioner brought a motion to vacate the
award of the Arbitration Panel invoking 14 M.RS.A. § 5938(1)(A) alleging
corruption, fraud, or other undue means and 14 M.R.S.A. § 5938(1)(B) alleging
evident partiality on the part of the neutral. On that same date, petitioner filed an
application for modification or correction of Fee Arbitration Panel award invoking
14 M.RS.A. § 5939.
Respondent has moved to dismiss on the ground that the motion and
application were untimely filed thereby denying this court jurisdiction over the
matter. Title 14 MRSA. § 5938 is entitled “Vacating an Award” and requires that
an application under the section must be made within 90 days after delivery of a
copy of the award to the applicant. Title 14 M.R.S.A. § 5939 is entitled “Modification
or Correction of Award” and provides that an application to modify or correct must
be made within 90 days after delivery of a copy of the award to the applicant. The
petitioner alleges that he received a copy on May 1, 1999, but provides no evidence
in substantiation of that assertion. However, the court would assume that the
petitioner received a copy of the award no earlier than the date it was filed with the
Board of Overseers of the Bar, April 28, 1999. Under those circumstances, a filing of
an application on July 27 would have been a filing on the 90th day. Therefore, the
applications are timely, the court does have jurisdiction and the motion to dismiss
of respondent on that ground must be denied.
Petitioner argues in its memorandum of law in support of its application to
modify or correct a number of factual assertions which he believes are incorrect and
based upon error. However, all of the assertions are fact based. Both the petitioner
and his motion and respondent in her answer suggest the court “do the math.”
With respect to petitioner’s motion to vacate the award, his entire basis for
fraud is disputes of fact and procedure in which the motivation of the respondent is
called into question as well as the findings by the Panel which petitioner assumes is
evidence of partiality. In sum and substance, the petitioner is unhappy with the
factual findings of the Panel but presents no evidence of facts constituting the
elements of fraud or obvious error. 4
A party seeking vacation of an arbitration award has the burden of
demonstrating one of specific statutory grounds requiring the court to vacate the
award. Pelletier & Flanagan, Inc. v. Maine Court Facilities Authority, 673 A.2d 213
(Me. 1996). The burden of proof rests on the party attacking the correctness of the
arbitration award. Maine State Employees Ass’n. v. State, Dep't of Defense, 436 A.2d
394 (Me. 1981). The Supreme Court has ruled that it will uphold a trial court’s
confirmation of an arbitration award unless the trial court was compelled to vacate
the award. School Administrative District No. 58 v. Mt. Abrams Teachers Ass'n, 704
A.2d 349 (Me. 1997); American Federation of State, County & Municipal Employees
Council 93 v. City of Portland, 675 A.2d 100 (Me. 1996); Pelletier & Flanagan, Inc. v.
Maine Court Facilities Authority, 673 A.2d 213 (Me. 1996). Under these
circumstances, it would appear to be the law of this land that the burden of proof on
a party seeking to vacate an arbitration award is that of establishing by a
preponderance of the evidence that this court is compelled to vacate such an award.
Whether or not this court must require a standard of proof of clear and convincing
evidence of fraud, there is nothing in a review of the record of this case nor the
assertions by petitioner of the presence of fraud even following a more likely than
not standard. °
With respect to the application to modify the terms of the arbitration award,
our Law Court permits this court to modify terms of arbitration award only in those
cases when modification is necessary to correct a formal or jurisdictional deficiency
in the award and when modification will not affect the merits of the controversy.
Maine State Employees Ass’n Local 1989 SEIU v. State Dep’t of Corrections, 593 A.2d
650 (Me. 1991). In the event this court is factually concerned with the necessity for
modification or corruption, it has the authority to resubmit the award to the
arbitrators for clarification. H.E. Sargent, Inc. v. Town of Millinocket, 470 A.2d 683
(Me. 1984). In this matter, the petitioner has not convinced this court that, as a
matter of fact, there are entries to be corrected. In that regard, the court notes, the
Fee Arbitration Panel involved in these proceedings was recipient of a motion dated
July 28, 1999 and served upon it by the petitioner for reconsideration of the Panel’s
award and determination. In this, the Panel obviously had an opportunity and
allegations before it to consider mathematical corrections in its decision.!
For all the reasons cited above, the entry will be:
Petitioner’s motion (sic) to vacate award of Fee Arbitration Panel
is DENIED; petitioner’s application for modification of correction of Fee
Arbitration Panel Award is DENIED; respondent’s motion to dismiss
petitioner’s application to modify or correct award and for Rule 11
sanctions is DENIED; respondent’s motion to dismiss petitioner’s
motion to vacate award of Fee Arbitration Panel (sic) and Rule 11
1 This motion encompassed 55 pages of assertions by the petitioner and a greater number of
pages of exhibits attached thereto.
AS
' sanctions is DENIED: judgment in accordance with the award and
determination of the Fee Arbitration Panel of the Board of Overseers of
the Bar in the matter of dispute No. 98-71-G, Panel No. III, is
CONFIRMED. .
Zo
Dated: May___/7_, 2000 GIL
Donald H. Marden
Justice, Superior Court
»Date Filed 7/27/99 Kennebec Docket No, _CV-99-178
County
Action”. OTHER-MOTION' TO VACATE ARBITRATION
MAY 28 9069
Stephen W. Weston VS.
Plaintiff's Attorney
a Karen M. Burke, Esq
Defendant's Attorney
Brian P. Winchester, Esq.
116 State Street
Augusta, Maine 04330
Karen M Burke Esq
PO Box 316
One Green St suite One
Winthrop Me 04364
Date of
Entry
7/28/99 Motion to Vacate Award of Fee Arbitration Panel, filed. s/Winchester, Esq.
Application for Modification or Correction of Fee Arbitration Panel Award,
filed. s/Winchester, Esq. (filed 7/27/99)
> Memorandum of Law in Support of Application to Modify or Correct Award
filed. s/Winchester, Esq.
Memorandum of Law in Support of Motion to Vacate Award of Fee Arbitration
Panel, filed. s/Winchester, Esq.
Motion for Stay of Proceedings Pending Reconsideration! by!'Fee/Arbitration
Panel, filed. s/Winchester, Esq.
8/2/99 COUNSEL MUST PROVIDE FORM OF ORDER’ s/Marden,J.
(Signed on 8/1/99)
Copies mailed to parties.
8/6/99 Return of Service on Karen Burke on 7/30/99, filed.
Notice of Important Rights, filed. s/Winchester, Esq.
Proposed Order on Motion for Stay, filed.
8/9/99 ORDER ON MOTION FOR STAY OF PROCEEDINGS , MARDEN, J.
Copies mailed to atty of record.
8/20/99 Motion to dismiss petitioners application to modify or correct award
and for rule 11 sanctions filed. s/Burke,Esq.
Motion to dismiss petitioners motion to vacate award of fee arbitration
panel and for rule 11 sanectitns filed. = tke
3/6/00 Supplemental memorandum of law in support of motion to dismiss petitioners
motion to vacate award of fee arbitration panel and motion to dismiss
petitioners application to modify or correct award and for rule 11 sanctions
filed. s/Burke Esq
Proposed order on motion to fismiss petitioners motion to vacate award
> of fee arbitration panel and for rule 11 sanctions filed.
3/8/00 Memorandum in opposition to supplemental memorandum of law filed
by respondent under date of March 3, 2000 filed g/winchester Esq
3/9/00
Oral arguments heard with Justice Marden presiding, Attys Winchester
and Burke present
Court takes underadvisement