ABC Building Corporation d/b/a Advanced Building Concepts v. Ropolo Family, LLC , 179 A.3d 701 ( 2018 )

March 14, 2018
March 14, 2018
Supreme Court
No. 2016-343-Appeal.
(NC 16-215)
ABC Building Corporation d/b/a Advanced :
Building Concepts
v. :
Ropolo Family, LLC. :
NOTICE: This opinion is subject to formal revision before publication in
the Rhode Island Reporter. Readers are requested to notify the Opinion
Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Tel. 222-3258 of any typographical or other
formal errors in order that corrections may be made before the opinion is
published.
Supreme Court
No. 2016-343-Appeal.
(NC 16-215)
(dissent begins on page 12)
ABC Building Corporation d/b/a Advanced :
Building Concepts
v. :
Ropolo Family, LLC. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Flaherty, for the Court. The defendant, Ropolo Family, LLC, appeals from an
order of the Superior Court that confirmed an arbitration award in favor of the plaintiff, ABC
Building Corporation, and from a corresponding judgment of the Superior Court in favor of ABC
and against Ropolo in the amount of $72,415, plus statutory interest in the amount of $7,086.24
through the date of the arbitration award, and post-award interest thereafter. Ropolo contends on
appeal that the arbitrator exceeded his authority by (1) manifestly disregarding clear and
unambiguous contractual language that should have precluded any award in favor of ABC, and
(2) manifestly disregarding well-settled law by awarding ABC recovery in quasi-contract when a
valid and enforceable contract was in existence. This case came before the Supreme Court
pursuant to an order directing the parties to appear and show cause why the issues raised in this
appeal should not summarily be decided. After considering the parties’ written and oral
arguments, and after reviewing the record, we conclude that cause has not been shown and that
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this case may be decided without further briefing or argument. For the reasons set forth below,
we affirm the order and judgment of the Superior Court.
I
Facts and Travel
ABC and Ropolo entered into a contract for the construction of a restaurant in Newport.
Sometime thereafter, a dispute arose regarding payment that Ropolo owed to ABC. It is
uncontroverted that, when it failed to receive full payment on the bills it submitted to Ropolo,
ABC ceased work on the project. 1 The contract provided that the parties would submit their
dispute to binding arbitration. They did, and, after significant discovery and protracted hearings,
the arbitrator awarded $72,415 to ABC, plus $7,086.24 in interest. The arbitrator predicated his
award on the following pertinent findings:
“3. I find that under the factual circumstances of this matter,
the Agreement and its General Conditions require payment
by [Ropolo] to [ABC] of the fair and reasonable value of
labor and materials supplied on the project.
“4. I find that [ABC’s] testimony, taken as a whole, was
sufficient and credible as to the fair and reasonable cost of
work, the reasonable necessity of the work, payment by
[ABC] for the work, and [ABC’s] communication of the
same to [Ropolo].
“***
“8. I find that [ABC] did not materially breach the
Agreement.”
In rendering his award, the arbitrator decided that “[ABC] is entitled to recover from [Ropolo]
under the contract and alternatively in quantum meruit * * *.”
ABC moved to confirm the arbitration award in the Superior Court. Ropolo objected to
ABC’s motion to confirm and simultaneously moved to vacate the arbitration award. Ropolo
1
ABC characterizes its cessation of work on the project as its electing to terminate the contract
pursuant to article 10 of the contract due to lack of payment by Ropolo. Ropolo characterizes
ABC’s stoppage as a material breach of the contract.
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argued that the arbitrator manifestly disregarded clear and unambiguous contractual language—
specifically, § 7.1.4:
“With each Application for Payment, the Construction Manager
shall submit payrolls, petty cash accounts, receipted invoices or
invoices with check vouchers attached, and any other evidence
required by the Owner or Architect to demonstrate that cash
disbursements already made by the Construction Manager on
account of the Cost of the Work equal or exceed progress
payments already received by the Construction Manager, less that
portion of those payments attributable to the Construction
Manager’s Fee, plus payrolls for the period covered by the present
Application for Payment.”
This language, according to Ropolo, “required that ABC submit specific items with each
[a]pplication for [p]ayment to substantiate each line item billed[,]” including documentation of
payroll, receipted invoices, and evidence of prior payments made by the owner. This, Ropolo
claimed, ABC failed to do. Ropolo asserted that much of the work for which ABC was seeking
compensation related to intangible supervisory and management labor and that, because ABC
had not submitted time sheets or other documentation, it was impossible for Ropolo to know if
the work had actually been performed. Ropolo further averred that it had not received the
requisite backup documentation for that work from ABC until after ABC initiated arbitration,
and thus Ropolo considered itself justified in withholding payment to ABC. Furthermore,
Ropolo argued, the arbitrator manifestly disregarded applicable law when he awarded ABC
recovery in quantum meruit despite the existence of a valid, legally enforceable contract.
Subsequently, ABC filed an objection to Ropolo’s motion to vacate the arbitration award,
maintaining that it had provided sufficient substantiation for the bills it submitted to Ropolo, and
that the arbitrator had so found.
On July 1, 2016, a hearing was held on the parties’ cross-motions to confirm and vacate
the arbitration award. ABC explained that it was a general contractor hired by Ropolo “to do a
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construction build-out of a new restaurant location in Newport.” However, ABC posited, a
disagreement arose between the parties because Ropolo “was complaining about the progress
and was disputing the invoices”; in response, ABC notified Ropolo that it was terminating their
agreement. Thereafter, according to ABC, the arbitrator found that the documentation provided
by ABC to Ropolo with the applications for payment was sufficient to substantiate those
invoices, and, as such, ABC had not breached the contract by stopping work.
ABC next addressed the two arguments that had been raised by Ropolo as grounds for
vacating the arbitration award. First, with respect to whether the arbitrator had disregarded the
contract, ABC emphasized that the arbitrator, who had significant experience in this area of the
law, had held multiple days of hearings, heard from witnesses involved in the dispute, and
accepted lengthy post-arbitration memoranda from the parties addressing the very issues Ropolo
was raising before the Superior Court. According to ABC, the arbitrator conducted a thorough
review of the evidence before him and “clearly found that there [were] clear and unambiguous
terms of the contract that supported [ABC’s] claim for breach of contract, that [ABC] had
supplied sufficient evidence of those damages and was entitled to recover.” Second, with
respect to whether the arbitrator had disregarded the law when providing for recovery in
quantum meruit as an alternative to a contract-based recovery, ABC asserted that the arbitrator
did not misapply the law or make a mistake of law. But even if he had ruled that the elements of
quasi-contract were satisfied, ABC argued, mere error of law is an insufficient basis for vacating
an arbitration award. In light of the Superior Court’s limited review of arbitration awards
pursuant to G.L. 1956 § 10-3-12, and given that the arbitrator had already examined and rejected
the arguments raised by Ropolo, ABC maintained that the award should be confirmed.
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Ropolo disagreed. It first recognized the heavy burden it had to overcome in asking the
Superior Court to vacate the arbitrator’s award. Nonetheless, Ropolo argued—as it had at
arbitration—that ABC had not complied with § 7.1.4 of the contract by failing to submit backup
documentation, in the form of payrolls or receipts, with its invoices to Ropolo. According to
Ropolo, the arbitrator did not find that, under the contract, ABC had submitted sufficient
documentation to Ropolo with each application for payment; in fact, the arbitrator did not find
that substantiating documentation had been submitted to Ropolo at all. Rather, as Ropolo saw it,
the arbitrator simply found “that [ABC’s] testimony, * * * taken as a whole, was sufficient and
credible as to the fair and reasonable cost of the work”—language Ropolo characterized as
sounding in quantum meruit. Ropolo thus maintained that the arbitrator based his award solely
on the testimony at arbitration, and not on a finding that ABC had complied with § 7.1.4 before
terminating the contract and initiating arbitration. 2
ABC countered that, in fact, the arbitrator had based his decision on the applications for
payment and the corresponding time sheets, which ABC introduced into evidence at arbitration
and which Ropolo had exhaustively examined. ABC conceded that the actual time sheets had
not been submitted to Ropolo with the applications for payment during the course of the project. 3
Nevertheless, according to ABC, the applications for payment did indeed include summaries of
the time spent on the project. Moreover, according to ABC, during the course of the project,
Ropolo never once asked for the supporting time sheets; Ropolo simply began selectively paying
ABC for some charges and not for others. It was not until ABC terminated the contract for such
2
In response to questioning by the hearing justice, Ropolo acknowledged that it had raised these
very issues in its post-arbitration memorandum to the arbitrator.
3
The time sheets were produced during pre-arbitration discovery.
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selective payments that Ropolo complained of a lack of substantiating documentation
accompanying each application.
Following the parties’ arguments, the hearing justice rendered his decision. He, too, was
impressed by the experience of the arbitrator in the field of contract law, and the hearing justice
noted that it was the parties who selected that arbitrator to perform that role. The hearing justice
expressed his reluctance to set aside the arbitrator’s award, especially where it had not been
shown to be “clearly ambiguous, totally arbitrary, [or] otherwise unreasonable.” In addition, the
hearing justice found that the arbitrator had performed his function by making findings of fact,
“and based on that [the hearing justice would] sustain the arbitrator[’]s award.” Accordingly, the
hearing justice confirmed the arbitration award and entered a judgment for the awarded amount
of $72,415, plus statutory interest in the amount of $7,086.24 through the date of the arbitration
award, as well as interest thereafter. Ropolo timely appealed.
II
Standard of Review
“Rhode Island has a strong public policy in favor of the finality of arbitration awards.”
Berkshire Wilton Partners, LLC v. Bilray Demolition Co., Inc., 91 A.3d 830, 834 (R.I. 2014). In
that light, “[t]o preserve the integrity and efficacy of arbitration proceedings, judicial review of
arbitration awards is extremely limited.” Id. at 834-35. This “policy of finality is reflected in the
limited grounds that the Legislature has delineated for vacating an arbitration award.” Id. at 835(quoting Prudential Property and Casualty Insurance Co. v. Flynn, 687 A.2d 440, 441 (R.I.
1996)).
In reviewing an arbitrator’s award, this Court, like the Superior Court, follows the
Arbitration Act, codified at G.L. 1956 chapter 3 of title 10. “Section 10-3-12 sets forth the
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narrow conditions pursuant to which an arbitration award must be vacated[.]” Atwood Health
Properties, LLC v. Calson Construction Co., 111 A.3d 311, 314 (R.I. 2015). It provides, in
pertinent part, that “the court must make an order vacating the award upon the application of any
party to the arbitration * * * [w]here 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.” Section 10-3-12(4). “An arbitrator may exceed his or her authority by giving an
interpretation that fails to draw its essence from the parties’ agreement, is not passably plausible,
reaches an irrational result, or manifestly disregards a provision of the agreement.” Berkshire
Wilton Partners, LLC, 91 A.3d at 835. An arbitration award may also be vacated “when the
arbitrator has manifestly disregarded the law.” Id. “[A] manifest disregard of the law requires
something beyond and different from a mere error in the law or failure on the part of the
arbitrator[ ] to understand or apply the law.” Id. at 836-37 (quoting City of East Providence v.
International Association of Firefighters Local 850, 982 A.2d 1281, 1286 (R.I. 2009)). Rather, it
“occurs when an arbitrator ‘understands and correctly articulates the law, but then proceeds to
disregard it.’” Id. at 837 (quoting City of Cranston v. Rhode Island Laborers’ District Council
Local 1033, 960 A.2d 529, 533 (R.I. 2008)).
At the same time, the General Assembly has also provided that “any party to the
arbitration may apply to the [Superior Court] for an order confirming the award, and thereupon
the court must grant the order confirming the award unless the award is vacated, * * * as
prescribed in §[] 10-3-12 * * *.” Section 10-3-11. Thus, if none of the “narrow conditions”
delineated in § 10-3-12—as this Court has interpreted them—are present, and if there has been
no manifest disregard of the law, “[t]he statutory directive is clear: a reviewing justice must
confirm the award * * *.” Wheeler v. Encompass Insurance Co., 66 A.3d 477, 480, 481 (R.I.
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2013) (emphasis added). Certainly we will make “[e]very reasonable presumption in favor of
the award * * *.” Berkshire Wilton Partners, LLC, 91 A.3d at 835 (quoting Feibelman v. F.O.,
Inc., 604 A.2d 344, 345 (R.I. 1992)). Of particular import, “[a]s long as the award ‘draws its
essence’ from the contract and is based upon a ‘passably plausible’ interpretation of the contract,
it is within the arbitrator’s authority and our review must end.” Rhode Island Court Reporters
Alliance v. State, 591 A.2d 376, 378 (R.I. 1991) (quoting Jacinto v. Egan, 120 R.I. 907, 912, 391
A.2d 1173, 1176 (1978)).
III
Discussion
There is no question that one who seeks to vacate an arbitration award shoulders a heavy
load. Because “[p]ublic policy favors the finality of arbitration awards, * * * such awards enjoy
a presumption of validity.” Lemerise v. Commerce Insurance Co., 137 A.3d 696, 699 (R.I.
2016) (quoting State Department of Corrections v. Rhode Island Brotherhood of Correctional
Officers, 64 A.3d 734, 739 (R.I. 2013)). After all, “[p]arties voluntarily contract to use
arbitration as an expeditious and informal means of private dispute resolution, thereby avoiding
litigation in the courts.” Berkshire Wilton Partners, LLC, 91 A.3d at 834 (quoting Aetna
Casualty & Surety Co. v. Grabbert, 590 A.2d 88, 92 (R.I. 1991)). To that end, “[p]arties who
have contractually agreed to accept arbitration as binding are not allowed to circumvent an award
by coming to the courts and arguing that the arbitrators misconstrued the contract or misapplied
the law.” Id. at 835 (quoting Prudential Property and Casualty Insurance Co., 687 A.2d at 441).
In our considered opinion, Ropolo is attempting to do just that. The company disagrees
with the manner in which the arbitrator viewed and applied the contract between the parties, and
it disagrees with the basis on which the arbitrator awarded recovery to ABC. However, neither
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avenue by which Ropolo has sought to vacate the arbitration award—first in the Superior Court,
and now before this Court—can afford Ropolo any relief.
First, we note that “review of an arbitration award does not permit ‘judicial re-
examination’ of the relevant contractual language.” Berkshire Wilton Partners, LLC, 91 A.3d at
837 (quoting Jacinto, 120 R.I. at 912, 391 A.2d at 1175). The arbitrator clearly was aware of
and considered § 7.1.4 of the contract. In fact, Ropolo exploited the requirements of that
provision extensively throughout the arbitration hearings and in its post-arbitration
memorandum, relying on § 7.1.4 to argue for an award in its favor. Quite simply, Ropolo does
not agree with the outcome that the arbitrator reached in the face of that contractual language.
Despite the lack of an explicit reference to § 7.1.4 in the award, it is simply not appropriate for
this Court to now hold—in hindsight, and contrary to our long-standing jurisprudence about the
finality of arbitration awards—that the arbitrator “manifestly disregard[ed] [that] provision of the
agreement.” Id. at 835.
In its argument to this Court, Ropolo relies on Nappa Construction Management, LLC v.
Flynn, 152 A.3d 1128 (R.I. 2017), but, in our opinion, that case is inapposite. In Nappa,
although the arbitrator faulted both parties for the delays in a construction project, he “effectively
found [the contractor] to be in breach of contract” due to its subpar performance. Nappa
Construction Management, LLC, 152 A.3d at 1133-34, 1135. Thus, under the terms of the
contract, the owners had the right both to order the contractor to temporarily suspend
construction and to withhold payment from the contractor until the problems were addressed. Id.
at 1133-34. As a result, the arbitrator ruled, such nonpayment was not a justifiable cause for the
contractor to terminate the contract. Id. at 1134, 1135. Nevertheless, in his efforts to craft what
he believed to be a fair remedy given what he viewed as equally borne fault, the arbitrator “took
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it upon himself to end the parties’ ‘combative, contentious, dysfunctional relationship’ by
employing the fiction that the [owners] had terminated the contract ‘for convenience[,]’” as they
were permitted to do under the agreement. Id. at 1134. We vacated the award, however,
because, “[u]nder the parties’ agreement, a termination for convenience [could] be exercised only
by the [owners] and completely in their discretion”—a right that the owners had not, in fact,
exercised. Id. (emphasis added). Accordingly, a majority of this Court held that the arbitrator
exceeded his authority by triggering that contractual provision himself; “[i]ndeed, the arbitrator’s
interpretation [was] in direct contravention of the contractual language.” Id. at 1133, 1134. In
contrast, the arbitrator here plainly found in his award that the contract “require[s] payment by
[Ropolo] to [ABC]” based on his finding of “sufficient and credible [evidence] as to the fair and
reasonable cost of work * * * and [ABC’s] communication of the same to [Ropolo].” (Emphasis
added.) Consequently, we hold that the award “draw[s] its essence from the parties’ agreement,”
including the contractual language and requirements of § 7.1.4. Berkshire Wilton Partners, LLC,
91 A.3d at 835. As such, “[w]e believe the decision of the arbitrator * * * is sufficiently
‘grounded in the contract’ to be within the scope of his authority.” Jacinto, 120 R.I. at 913-14,
391 A.2d at 1176 (quoting United Steelworkers of America v. United States Gypsum Co., 492
F.2d 713, 731-32 (5th Cir. 1974)).
Second, “[t]he deference due to the arbitrator is such that an arbitrator’s mere error of law
is insufficient grounds to vacate his award.” Berkshire Wilton Partners, LLC, 91 A.3d at 836.
Nor is a “failure on the part of the arbitrator[] to understand or apply the law” sufficient for
vacation. Id. at 837 (quoting City of East Providence, 982 A.2d at 1286). Rather, a manifest
disregard of the law—which “occurs when an arbitrator ‘understands and correctly articulates the
law, but then proceeds to disregard it’”—is required for this Court to vacate an arbitrator’s
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award. Id. (quoting City of Cranston, 960 A.2d at 533). According to Ropolo, the arbitrator did
just that when he decided that “[ABC] is entitled to recover from [Ropolo] under the contract
and alternatively in quantum meruit the total amount of $72,415.00[.]” (Emphasis added.)
Because, as Ropolo sees it, neither party contests that there was a valid contract in existence, and
because ABC materially breached the agreement when it stopped working on the project, ABC is
precluded from recovering under a quasi-contract theory. However, to accept that argument
would require us to ignore the express finding by the arbitrator that “[ABC] did not materially
breach the Agreement.” That, we cannot and will not do. It is clear to us that the arbitrator
awarded ABC recovery under the contract itself; recovery in quantum meruit was merely an
alternative basis.
It bears emphasizing that, “[i]n general, courts look with disfavor on efforts to overturn
arbitration awards and thereby frustrate the arbitration process. Only in cases in which an award
is so tainted by impropriety or irrationality that the integrity of the process is compromised
should courts intervene.” Prudential Property and Casualty Insurance Co., 687 A.2d at 441.
This is simply not such a case.
IV
Conclusion
For the reasons set forth above, we affirm the order and judgment of the Superior Court.
The record shall be remanded to the Superior Court.
Justice Goldberg participated on the basis of the briefs.
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Justice Robinson, dissenting. I respectfully dissent from the majority’s opinion
affirming the grant of ABC Building Corporation’s (ABC) motion to confirm the arbitration
award in this case. In my view, this Court should vacate that award. In ruminating on this case,
I have been guided by the following eloquent statement of Justice William O. Douglas, writing
for the United States Supreme Court in the case of United Steelworkers of America v. Enterprise
Wheel & Car Corp., 363 U.S. 593, 597 (1960):
“[An arbitrator] does not sit to dispense his own brand of industrial
justice. He may of course look for guidance from many sources,
yet his award is legitimate only so long as it draws its essence from
the [contract]. When the arbitrator’s words manifest an infidelity to
this obligation, courts have no choice but to refuse enforcement of
the award.” 1
In my judgment, Justice Douglas’s statement is entirely consistent with Rhode Island’s
law with respect to arbitration awards. We have stated that an arbitrator is “confined to interpret
the terms of the agreement [between the parties] so as to effectuate the intentions of the parties to
the contract.” Rhode Island Council 94, AFSCME, AFL-CIO v. State, 714 A.2d 584, 588 (R.I.
1998). An arbitrator’s “broad authority to interpret the agreement between the parties and
fashion an appropriate remedy is not unbridled. His or her authority is contractual in nature and
is limited to the powers conferred in the parties’ [contractual agreement].” Nappa Construction
Management, LLC v. Flynn, 152 A.3d 1128, 1133 (R.I. 2017) (alteration in original) (internal
quotation marks omitted). This Court “must make an order vacating the award upon the
application of any party to the arbitration * * * [w]here the arbitrators exceeded their
powers * * *.” G.L. 1956 § 10-3-12(4). We have repeatedly held that “[a]n arbitrator may
exceed his or her authority by giving an interpretation that fails to draw its essence from the
1
See also Rhode Island Council 94, AFSCME, AFL-CIO v. State, 714 A.2d 584, 589 (R.I.
1998) (quoting United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593,
597 (1960)).
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parties’ agreement, is not passably plausible, reaches an irrational result, or manifestly
disregards a provision of the agreement.” Nappa Construction Management, LLC, 152 A.3d at
1133 (alteration in original) (emphasis added) (internal quotation marks omitted); see also State
Department of Corrections v. Rhode Island Brotherhood of Correctional Officers, 866 A.2d
1241, 1245 (R.I. 2005).
I candidly recognize at the outset that our review of arbitration awards is “extremely
limited.” Nappa Construction Management, LLC, 152 A.3d at 1133. I also recognize that such
awards “enjoy a presumption of validity.” Lemerise v. Commerce Insurance Co., 137 A.3d 696,
699 (R.I. 2016) (internal quotation marks omitted). However, my unblinking view that the
arbitration award should be vacated in this case is not the product of a mere disagreement with
the arbitrator’s award. Rather, in my opinion, even keeping in mind the “extremely limited”
standard of review that applies here, the award in this case failed to draw its essence from the
contract between the parties and manifestly disregarded that contract. Nappa Construction
Management, LLC, 152 A.3d at 1332-33. Accordingly, the just-cited precedent in this area of
the law leads me ineluctably to the view that the arbitrator exceeded his authority and that the
award in this case should be vacated. See § 10-3-12(4).
The arbitration award at issue in the instant case states that the contract required payment
of the “fair and reasonable value of labor and materials supplied on the project” and that ABC’s
testimony was “sufficient and credible” as to “the fair and reasonable cost” of the work done by
ABC and as to ABC’s “communication of the same to [Ropolo Family, LLC].” However, the
words “fair and reasonable” do not appear at all in the contract between the parties—neither
literally nor in paraphrase. In my opinion, it strains credulity to suggest that the arbitration
award in this case properly drew its essence from the contract between the parties when the
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standard which the arbitrator asserted was required by the contract, and which he ultimately
employed, does not exist in the contract at all. This Court has stated that, in Rhode Island,
“[a]rbitration is a creature of the contract between the parties * * *.” Rhode Island Brotherhood
of Correctional Officers, 866 A.2d at 1247. It is clear to me that the arbitration award in the
instant case most certainly was not a “creature of the contract.”
Moreover, the arbitrator was asked to resolve the debate between the parties over what
documentation ABC was required to include with its bills when those bills were presented to
Ropolo Family, LLC. Specifically, the application of § 7.1.4 of the agreement between the
parties was at issue. Shockingly, however, nowhere in the arbitration award does the arbitrator
even mention § 7.1.4, nor does he resolve the question of what backup documentation was
required; the arbitrator simply states in an utterly conclusory manner that ABC did not materially
breach the contract. That fact serves to confirm my view that, even viewing it through a
generous and liberal lens, the arbitration award in this case was not based even loosely on the
contract between the parties. See Rhode Island Council 94, 714 A.2d at 588 (stating that “an
arbitration award not grounded in the contract between the parties * * * must be vacated”); see
also Nappa Construction Management, LLC, 152 A.3d at 1132. In so stating, I consciously
(albeit respectfully) place myself unequivocally at odds with the majority’s statement that
“[d]espite the lack of an explicit reference to § 7.1.4 in the award, it is simply not appropriate for
this Court to now hold—in hindsight, and contrary to our long-standing jurisprudence about the
finality of arbitration awards—that the arbitrator ‘manifestly disregard[ed] [that] provision of the
agreement.’” (quoting Berkshire Wilton Partners, LLC v. Bilray Demolition Co., Inc., 91 A.3d
830, 835 (R.I. 2014)). On the contrary, in my view, it is entirely appropriate for this Court to so
hold in the instant case.
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I would further comment that, unlike the majority, I view this case as an even more
egregious instance of an arbitrator exceeding his or her authority than we were quite recently
called upon to deal with in Nappa Construction Management, LLC. As the majority opinion in
the instant case reflects, in Nappa Construction Management, LLC, 152 A.3d at 1134, as the
basis for his award, the arbitrator at least sought to take refuge in actual language contained in a
portion of the agreement between the parties. However, we found fault with the arbitration
award because that portion of the agreement could be “exercised only by the [owners].” Id. In
that case, the arbitrator at least based his award on a clause of the contract, however ill-advised
his choice of contract clause may have been. Id. By contrast, in the instant case, the standard
applied by the arbitrator does not exist anywhere in the contract. Accordingly, I firmly believe
that my view with respect to the instant case is not at all inconsistent with this Court’s holding in
Nappa Construction Management, LLC; indeed, as I mull over our holding in Nappa
Construction Management, LLC, I consider the instant case to be an a fortiori instance of an
arbitrator exceeding his or her power.
Consequently, while I acknowledge that there are understandable policy reasons for this
Court’s practice of engaging in limited review of arbitration awards, it is nonetheless my view
that this case represents one of the relatively rare situations where an arbitrator has exceeded his
authority; for that reason, I am convinced that the arbitration award should be vacated. See State
v. Rhode Island Employment Security Alliance, Local 401, SEIU, AFL-CIO, 840 A.2d 1093,
1096 (R.I. 2003) (stating that, “[a]lthough public policy favors the final resolution of disputes
* * * by arbitration, this policy relies on the premise that arbitrators act within their power and
authority”) (internal quotation marks omitted); see also Rhode Island Council 94, 714 A.2d at
588.
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In conclusion, I must respectfully but adamantly dissent from the majority’s opinion.
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
ABC Building Corporation d/b/a Advanced Building
Title of Case
Concepts v. Ropolo Family, LLC
No. 2016-343-Appeal.
Case Number
(NC 16-215)
Date Opinion Filed March 14, 2018
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Associate Justice Francis X. Flaherty
Source of Appeal Newport County Superior Court
Judicial Officer From Lower Court Associate Justice Walter R. Stone
For Plaintiff:
Attorney(s) on Appeal Joseph J. Reale, Jr., Esq.
For Defendant:
Michael A. Kelly, Esq.
SU-CMS-02A (revised June 2016)