Appeal by plaintiff from orders entered 26 July 1996 and 3 December 1996 by Judge F. Gordon Battle in Orange County Superior Court.
McGEE, Judge. Judges Lewis and Martin, John C. concur.
The opinion of the court was delivered by: Mcgee
This dispute arises from the alleged breach of seven contracts entered into by plaintiff, a general contractor, and defendant, a masonry subcontractor, which were submitted to arbitration pursuant to an agreement between the parties. Plaintiff appeals the trial court's 26 July 1996 order to confirm the arbitration award (award) and the 3 December 1996 order denying plaintiff's motion to vacate the award. Plaintiff argues the trial court erred: (1) by confirming a single arbitration award, which was imperfect as a matter of law, because it failed to set out seven separate awards related to each of the contractual disputes submitted to arbitration; and (2) by denying a motion to set aside the judgment and vacate the award when the judgment and award were obtained by fraud, corruption and other undue means. The parties entered into seven contracts for separate projects in which defendant agreed to "furnish and install precast concrete erection, masonry and drywall." To allow defendant to expand its operations to perform these contracts, plaintiff advanced defendant money on a weekly basis for the purchase of insurance and machinery and to meet other expenses.
Defendant performed work pursuant to these seven contracts until 30 August 1995 when defendant informed plaintiff by letter that plaintiff's actions, including "late and nonpayment of invoices, [have] forced [the defendant] to no longer be able to continue on [the plaintiff's] projects." Defendant further informed the plaintiff that if plaintiff could "see fit to uphold its end by paying all past due and outstanding invoices [and] completely funding all outstanding payroll and all outstanding insurance invoices as per [their] agreement, [defendant would] be happy to return to the projects." In response plaintiff, by letter dated 31 August 1995, informed defendant that "by virtue of that letter and [defendant's] failure to continue the North Carolina projects pursuant to its subcontracts with [plaintiff], [plaintiff] exercises its right under Article XII of the subcontracts and terminates the employment of [defendant]."
On 1 September 1995 plaintiff filed a complaint alleging breach of contract, fraud, and unfair and deceptive trade practices. In response, defendant filed a demand for arbitration with the American Arbitration Association and moved to compel arbitration. The trial court entered a consent order on 23 October 1995 staying the litigation and referring all claims to arbitration, except those for claim and delivery.
After extensive discovery and an evidentiary hearing, the arbitration panel entered its award on 13 June 1996 in favor of defendant in the amount of $590,736.00 plus costs and further determined that "any projects related to this arbitration with still unpaid invoices as of June 3, 1996 are the responsibility of [plaintiff]." Neither party requested a breakdown of the award with respect to the seven contracts prior to the rendering of the award, and the arbitrators made none. However, on 18 June 1996 after the award was entered, plaintiff requested a "breakdown of the Award between the seven separate subcontracts" in a letter to the AAA. Plaintiff stated that one reason for the request was that plaintiff "may be entitled to recover all, or some portion of, the Award from one of the owners of the projects or one of the other prime contractors" of the other projects and the form of the existing award "provides no basis for [plaintiff] to make these claims." This request for "modification or explanation" of the Award was denied by the AAA.
After the award was rendered by the arbitrators, defendant filed a motion to confirm the award pursuant to N.C. Gen. Stat. § 1-567.12. Plaintiff filed a responsive motion on 3 July 1996 to vacate the arbitration award on the grounds that the arbitration panel "exceeded its powers" by failing to render separate judgments as to each of the seven contracts. Defendant further moved that "in the alternative, this Court should either modify or correct the award pursuant to N.C. Gen. Stat. § 1-567.14(a)(3) or submit the award to the arbitration panel to correct or modify the award pursuant to [N.C. Gen. Stat. § 1-567.10]." On 26 July 1996 the trial court denied plaintiff's motion and entered an order confirming the award, which plaintiff timely appeals.
Plaintiff filed another motion on 12 September 1996 to set aside the judgment and the order confirming the award and to vacate the award on the grounds of fraud. After conducting an evidentiary hearing the trial court found that plaintiff:
(1) has failed to establish that the award and judgment in this case were procured by corruption, fraud or other undue means.
(2) the alleged fraud and wrongful conduct was discoverable upon the exercise of due diligence prior to or during the arbitration hearing.
(3) the alleged fraud and wrongful conduct have not been established by clear and convincing evidence.
(4) the alleged fraud is not materially related to an issue in the arbitration hearing.
Specifically the trial court found that the allegations of fraud were supported primarily by the testimony of Susan Milcarek, an employee of defendant who was fired. Milcarek testified that defendant had fraudulently billed plaintiff for insurance premiums and construction costs, including renovations to the personal residence of the owner of the defendant corporation. The trial court found that Milcarek was not a credible witness and that plaintiff had failed to establish by "clear and convincing evidence" its other allegations of fraud. The trial court then ...