UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 96-50171
_______________________
UNITED STATES OF AMERICA FOR THE
USE AND BENEFIT OF CLYDE MCCULLAR AND
EMC CONSTRUCTION, INC.,
Appellant,
versus
CAROTHERS CONSTRUCTION, INC.
Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(W-94-CV-276)
_________________________________________________________________
September 20, 1996
Before JONES, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Appellant Clyde McCullar (“McCullar”) appeals the
district court’s confirmation of an arbitration award finding
McCullar personally liable for Carothers’ attorneys’ fees, costs,
and expenses incurred during arbitration. After reviewing this
*
Pursuant to Local Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in Local Rule 47.5.4.
confirmation de novo, this court AFFIRMS.
BACKGROUND
On October 4, 1995, McCullar and EMC Construction, Inc.
(“EMC”) filed suit for breach of contract against Carothers as well
as St. Paul Fire and Marine Insurance Company (“St. Paul”),
Carothers’ surety. Carothers and St. Paul answered and Carothers
filed a counterclaim.
Prior to proceeding to trial, the parties agreed to
submit the case to an arbitration panel. Importantly, though St.
Paul and McCullar were not parties to the original contract, they
too agreed to submit to the arbitration and to be bound by the
decision of the panel. On December 15, 1995, the arbitration panel
found in favor of Carothers and awarded Carothers $306,829.24 in
damages, $59,761.89 in attorneys’ fees, and $17,350 in expenses,
all recoverable from EMC and McCullar, jointly and severally.
Carothers sought to have the award confirmed in its
entirety by the district court. Instead, the district court
modified the award and ruled that McCullar was not personally
liable for the damages sustained by Carothers. However, the court
confirmed the balance of the award, including that portion of the
award that held McCullar personally liable for fees and expenses in
the amount of $78,111.89. McCullar appeals the district court’s
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decision to confirm this aspect of the arbitration award.
DISCUSSION
This court reviews de novo the district court’s decision
to confirm an arbitration award. Executone Info. Sys., Inc. v.
Davis, 26 F.3d 1314, 1320 (5th Cir. 1994); McIlroy v. PaineWebber,
Inc., 989 F.2d 817, 819-20 (5th Cir. 1993); Forsythe Int’l, S.A. v.
Gibbs Oil Co., 915 F.2d 1017, 1020-21 (5th Cir. 1990).
Though this court reviews de novo, our review is
nonetheless extremely limited because the district court’s “review
of an arbitration award is extraordinarily narrow.” Antwine v.
Prudential Bache Securities, Inc., 899 F.2d 410, 413 (5th Cir.
1990). For instance, in a typical proceeding to confirm or vacate
an arbitration award, the Federal Arbitration Act (“FAA”)
circumscribes the review of the court, providing that an award
shall not be vacated unless: (1) the award was procured by
corruption, fraud, or undue means; (2) there is evidence of
partiality or corruption among the arbitrators; (3) the arbitrators
were guilty of misconduct which prejudiced the rights of one of the
parties; or (4) the arbitrators exceeded their powers. 9 U.S.C. §
10(a)(1)-(4) (Supp. 1995). Forsythe Int’l, S.A., 915 F.2d at 1020.
In the instant case, McCullar falls far short of
satisfying these criteria, failing even to allege facts that would
enable this court to vacate the arbitration panel’s decision to
hold McCullar liable for the attorneys’ fees, costs, and expenses
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of arbitration. Moreover, McCullar acknowledges that he agreed to
the binding arbitration. Prior to this arbitration, EMC’s and
McCullar’s ability to pay fees became an issue for the panel; to
that end, both EMC and McCullar submitted tax returns to the
American Arbitration Association for its determination whether it
would reduce, waive, or otherwise adjust the arbitration fees.
Because the issue of fees, costs, and expenses was properly before
the arbitration panel, under the circumstances of this case, this
court is precluded from upsetting the award of the arbitration
panel.
CONCLUSION
For the foregoing reasons, the decision of the district
court confirming this part of the arbitration award is AFFIRMED.
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