COA: Objections To Untimely Arbitration Awards Must Be Made Before Award Is Entered
In the NC COA's Carroll v. Ferro, filed Sept. 5, the COA sent a warning to parties to arbitrations: If you want to raise untimeliness of an award as a basis for vacating the award, you had better lodge a timely objection.
In Carroll, the arbitrator made an award outside the 30-day period mandated by AAA. The defendants (James Ferro, Delphin Properties, Community Land Associates, and Associates Housing Finance) argued that the award's untimeliness constituted "exceeding the powers" of the arbitrator, a ground for vacatur. But instead of making an untimeliness objection upon the passage of the 30-day period, the defendants objected only after the arbitrator made an award that was not in their favor. The COA "h[e]ld that failure to object to the untimeliness of the award before entry constitutes a waiver, regardless of whether defendants base their claim on 9 U.S.C. § 10 or N.C. Gen. Stat. § 1-567.13 (2002)." While N.C. Gen. Stat. § 1-567.13 has been repealed, the similar N.C. Gen. Stat. § 1-569.1 et seq. have taken its place and therefore Carroll's holding would seem as applicable under current NC law as it was under N.C. Gen. Stat. § 1-567.13 in Carroll.
Carroll underscores what appears to be a popular theme in our appellate courts these days: You snooze, you lose. For example, in State v. Dennison, the COA held an objection to what the COA determined to be impermissible evidence was properly preserved where defense counsel filed a pre-trial motion to exclude the evidence, objected to cross-examination of the defendant about the evidence, and moved to strike the examination of another witness about the evidence at the conclusion of that examination. The Supreme Court reversed, holding that because defense counsel didn't object during the testimony of the witness whose testimony he then moved to strike, the objection was waived.
Take-away point: If you want to be sure to preserve an objection for review, time is of the essence.
In Carroll, the arbitrator made an award outside the 30-day period mandated by AAA. The defendants (James Ferro, Delphin Properties, Community Land Associates, and Associates Housing Finance) argued that the award's untimeliness constituted "exceeding the powers" of the arbitrator, a ground for vacatur. But instead of making an untimeliness objection upon the passage of the 30-day period, the defendants objected only after the arbitrator made an award that was not in their favor. The COA "h[e]ld that failure to object to the untimeliness of the award before entry constitutes a waiver, regardless of whether defendants base their claim on 9 U.S.C. § 10 or N.C. Gen. Stat. § 1-567.13 (2002)." While N.C. Gen. Stat. § 1-567.13 has been repealed, the similar N.C. Gen. Stat. § 1-569.1 et seq. have taken its place and therefore Carroll's holding would seem as applicable under current NC law as it was under N.C. Gen. Stat. § 1-567.13 in Carroll.
Carroll underscores what appears to be a popular theme in our appellate courts these days: You snooze, you lose. For example, in State v. Dennison, the COA held an objection to what the COA determined to be impermissible evidence was properly preserved where defense counsel filed a pre-trial motion to exclude the evidence, objected to cross-examination of the defendant about the evidence, and moved to strike the examination of another witness about the evidence at the conclusion of that examination. The Supreme Court reversed, holding that because defense counsel didn't object during the testimony of the witness whose testimony he then moved to strike, the objection was waived.
Take-away point: If you want to be sure to preserve an objection for review, time is of the essence.
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