D. W. Caldwell, Inc. v. W.G. Yates & Sons Construction Company

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2017-CA-00116-SCT

D. W. CALDWELL, INC.

v.

W.G. YATES & SONS CONSTRUCTION
COMPANY

DATE OF JUDGMENT: 01/10/2017
TRIAL JUDGE: HON. CHRISTOPHER A. COLLINS
TRIAL COURT ATTORNEYS: DORSEY R. CARSON, JR.
TERRY L. JORDAN
CHRISTOPHER SOLOP
TRAVIS JONATHAN CONNER
JERALD R. HANKS
DAVID SANDERS HUMPHREYS
JULIE CHRISTINE SKIPPER
COURT FROM WHICH APPEALED: NESHOBA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: CHRISTOPHER SOLOP
TRAVIS JONATHAN CONNER
JERALD R. HANKS
ATTORNEYS FOR APPELLEE: DORSEY R. CARSON, JR.
DAVID SANDERS HUMPHREYS
TERRY L. JORDAN
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED AND REMANDED - 05/10/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE RANDOLPH, P.J., KING AND BEAM, JJ.

BEAM, JUSTICE, FOR THE COURT:

¶1. This Court adheres to the widely recognized standards providing for a trial court’s

amendment of an arbitration award under limited conditions. Importantly, those standards

provide that a court may modify an arbitrator’s award to correct an evident miscalculation
of figures before entering its judgment. See Miss. Code Ann. § 11-15-135 (Rev. 2004).

However, this Court has yet to determine what qualifies as an evident miscalculation and to

what extent a judge may inquire to determine whether such a miscalculation exists.

¶2. Through the analysis below, we find first that the miscalculations alleged in this

matter are not evident from the award itself, nor are they apparent from the agreed-upon

record. Additionally, we find that the judge erred when he allowed the parties to present

witness testimony regarding the extent of any alleged miscalculations, rather than relying on

the award and the arbitration record as the relevant law suggests. Finding error, we reverse

the circuit court’s decision and remand this case to the circuit court with directions to confirm

the December 8, 2015, arbitration award. Furthermore, because the subcontract between the

parties provides that each contractor will be responsible for his own fees and costs, the Court

declines to assess costs to one party over the other, and instead, enforces their bargained-for

agreement.

FACTS AND PROCEDURAL HISTORY

¶3. Yates Construction, LLC, and D.W. Caldwell, Inc., entered into a construction sub-

contract for the roof installation on a residential dormitory at Auburn University in Auburn,

Alabama. Caldwell–the roofing subcontractor–began work on the roof in October 2012.

Early on, Caldwell employees identified structural issues with the building, preventing the

company from moving forward with the roof installation. Caldwell notified Yates of the

issues, and after some discussion about the repairs needed, Caldwell agreed to repair the

building prior to installing the roof. Rather than amending the existing subcontract or

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creating a new contract for the repair expenses, Yates urged Caldwell to bill against

“unperformed work” for those costs related to the extra work completed. Although the

arrangement was unconventional, Caldwell orally agreed to the billing scheme, requiring that

it be paid weekly, on a “cost plus overhead and profit basis.”

¶4. When Caldwell completed both the repairs and the roof installation, it had yet to

receive total payment for the structural repairs. The companies disputed the scope and

expense of these repairs and quickly negotiated their way to an impasse. Thereafter,

Caldwell filed a claim against Yates for causing delay and increased costs by failing to pay

for work performed, which was in breach of the agreements between the parties.

¶5. The parties proceeded to arbitration. Although the arbitration record was neither

recorded nor transcribed, the parties concede that the arbitrator considered arguments,

reviewed evidence, and heard witness testimony over the course of three days. He then

reopened the proceedings for additional documentation, before issuing his thirteen-page

award on December 8, 2015. Shortly thereafter, Yates timely filed its motion for clarification

and/or correction of the arbitration award, which was summarily dismissed by the arbitrator.

Noting that the award included no clerical, typographical, technical, or computational errors,

the arbitrator determined he lacked the authority to re-evaluate the merits of any claim

already decided, under the circumstances.

¶6. Within two weeks of the arbitrator’s decision to deny Yates’s motion, Caldwell

requested that the circuit court confirm the award under Mississippi Code Section 11-15-125.

One month later, Yates moved the trial court to alter, amend, or vacate the award under

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Mississippi Code Section 11-15-25.1 With the understanding that Yates would provide oral

argument on its motion at the award confirmation hearing, Caldwell filed a request to limit

the presentation of proof before the circuit court.

¶7. The hearing on all three motions was held on December 1, 2016. The circuit court

judge began by requesting arguments on Caldwell’s motion to limit proof. Throughout the

presentations, the court asked questions of the parties’ representatives and heard arguments

on several issues under discussion. Believing that an evident miscalculation was present as

it related to the retainage amounts2 included in both the subcontract and the final award, the

court overruled Caldwell’s request to limit proof and permitted the parties to proceed on

Yates’s motion to alter, amend, or vacate the arbitration award. During this second phase of

the hearing, the trial court allowed the parties to introduce evidence and witness testimony.

Though Caldwell’s attorneys objected on the basis of whether such evidence was on the

record during the arbitration and whether such testimony was considered by the arbitrator in

his ultimate decision, the court allowed counsel for Yates to continue with his witness

examination and evidence presentation.

1
Both Mississippi Code Sections 11-15-25(a) and 11-15-135(a) provide that award
modifications may be made if “there is an evident miscalculation of figures or an evident
mistake in the description of any person, thing or property referred to in the award.” Miss.
Code Ann. §§ 11-15-25(a), 11-15-135(a) (Rev. 2004). Yates failed to cite the provisions
of the Mississippi Code construction arbitration laws under Section 11-15-101 through 143,
though any error here is harmless, as the statutes are identical.
2
Retainage is money withheld in a construction project pending satisfactory
completion of the work.

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¶8. Ultimately, the trial court reviewed fourteen exhibits and the testimony of one witness

in making its decision. Based on this evidence, the court issued its order modifying the

arbitrator’s award on January 10, 2017. Under Mississippi Code Section 11-15-135 and the

Federal Arbitration Act, the court determined that the award contained a “facially evident

miscalculation which permitted . . . Caldwell to receive double payment.” Finding that the

arbitrator had duplicated the labor costs for shingle installation in its award–once under the

original subcontract and once under the oral agreement to repair the structural damage

(referred to as the Repair Agreement)–it amended the award, reducing the total by $104,507.

¶9. On appeal, Caldwell argues that the trial court erred when it denied the motion to limit

proof and allowed Yates to present evidence and witness testimony. Caldwell also contends

that the trial court erred in finding that the arbitrator’s award contained a facially evident

miscalculation. We agree. Based on the analysis below, this Court finds that the arbitrator’s

award contained no evident miscalculations which would merit modification. Moreover, the

circuit court erred by allowing Yates to present witnesses before the court. Therefore, we

reverse the decision of the Neshoba County Circuit Court and remand for the court to

confirm the arbitration award.

APPLICABLE LAW

¶10. This matter involves a contract’s choice-of-law provision and the applicability of

federal and state statutes, as well as trade-association regulations. Caldwell (a Georgia-based

company) and Yates (a Mississippi corporation) entered into a subcontract in Mississippi to

be performed in Alabama. It is undisputed that, between the two companies, their

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employees, and their distributors, both labor and materials crossed state lines.

Unquestionably, these facts affect interstate commerce, creating the need to continue under

the mandate of the Federal Arbitration Act. See 9 U.S.C.A. §§ 1, 2. Therefore, Yates

correctly argues that the Federal Arbitration Act applies to this matter. See MS Credit Ctr.,

Inc. v. Horton, 926 So. 2d 167, 173 (Miss. 2006) (quoting Guinness Harp Corp. v. Jos.

Schlitz Brewing Co., 613 F. 2d 468 (2d Cir. 1980) (requiring that “[w]hen a commercial

transaction involving interstate commerce includes an agreement to arbitrate disputes, federal

law controls the enforcement of the arbitration agreement.” (emphasis added))).

¶11. However, “[w]here . . . parties have agreed to abide by state arbitration rules,

enforcing those rules according to the terms of the agreement is fully consistent with the

FAA . . .”. Volt Info. Sci., Inc. v. Bd. of Tr. of Leland Stanford Junior Univ., 489 U.S. 468,

469 (1989), 109 S. Ct. 1248, 1250, 103 L. Ed. 2d 488 (United States Supreme Court

determined that the parties’ contractual agreement to pursue arbitration under their state rules

of arbitration was not preempted by the Federal Arbitration Act when those rules did not

“undermine the goals and policies of the FAA.”) Article XIV of the parties’ subcontract,

titled “Dispute Resolution,” begins as follows:

This Subcontract shall be deemed entered into in Philadelphia, Mississippi,
upon execution by the parties. The laws of the state of Mississippi govern this
Subcontract . . . .

Although the FAA applies directly to the matter, the parties knowingly and willingly

contracted for the laws of this state to govern any disputes related to their agreement.

Furthermore, neither party objected to the role of Mississippi law in the contract, nor did

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either insist on adherence to the FAA prior to the arbitration award’s disclosure. Because

this Court previously has provided that parties may limit contractually the issues which they

will arbitrate (see Doe v. Hallmark Partners, LP, 227 So. 3d 1052, 1055 (Miss. 2017)), this

Court will not hesitate to extend that provision–as the United States Supreme Court has–to

allow parties to specify by contract the laws and rules under which that arbitration will be

conducted. After all, “[a]rbitration under the Act is a matter of consent, not coercion, and

parties are generally free to structure their arbitration agreements as they see fit.” Volt Info.

Sci., Inc., 489 U.S. at 479, 109 S. Ct. at 1250, 103 L. Ed. 2d 488.

¶12. Based on their agreement, the parties’ intent to proceed under Mississippi law is clear,

and this Court therefore will apply the same. As a result, we continue our analysis under the

provisions in Mississippi Code Sections 11-15-101 through 143. Titled “Arbitration of

Controversies Arising from Construction Contracts and Related Agreements,” this section

of Mississippi’s Arbitration Act applies “to any agreement for the . . . engineering,

construction, erection, repair or alteration of any building, structure, fixture, . . . or any part

thereof . . . ”. Miss. Code Ann. § 11-15-101 (Rev. 2004). Because the underlying dispute

concerns the installation of a roof and a subcontract between two contractors, the laws under

this section control the discussion below.

I. Whether the trial court erred in finding that the arbitrator’s award
contained an “evident miscalculation” of figures, justifying the
award’s modification.

¶13. A defining characteristic of arbitration is its finality and the binding disposition of a

controversy. See Schaefer v. Allstate Ins. Co., 63 Ohio St. 3d 708, 590 N.E. 2d 1242 (1992).

7
Parties to an arbitration enter the process knowing that the arbitrator’s award will signal the

factual end of their dispute, rather than leaving open the door to the possibility of future

appeals. With this in mind, courts asked to review, confirm, or modify an arbitrator’s award

do so through an extremely limited lens. See Wilson v. Greyhound Bus Lines, Inc., 830 So.

2d 1151, 1155 (Miss. 2002). In this regard, “[t]he scope of judicial review of an arbitration

award is quite narrow, and ‘every reasonable presumption will be indulged in favor of the

validity of arbitration proceedings.”’ Id. (quoting Craig v. Barber, 524 So. 2d 974, 977

(Miss. 1988)) (see also Hutto v. Jordan, 36 So. 2d 809, 811 (Miss. 1948)). Specifically,

judicial review of an arbitrator’s award is limited to Sections 10 and 11 of the Federal

Arbitration Act, 9 U.S.C. § 1 et seq., and Sections 11-15-23, -25, -133 and -135 of the

Mississippi Code. See Forsythe Int’l, S.A. v. Gibbs Oil Co. of Texas, 915 F. 2d 1017, 1020

(5th Cir. 1990). Accordingly, a circuit court has no authority to modify a construction-related

arbitration award unless the exceptions outlined under Mississippi Code Section 11-15-

135(1)(a) and (2), or its nearly identical, sister provision, found in United States Code

Chapter 9, Section 11(a), are met. See generally Margerum v. Bud’s Mobile Homes, Inc.,

823 So. 2d 1167, 1173 (Miss. 2002) (noting that “[t]he trial court is not allowed to substitute

its own judgment on the merits of the controversy for that of the arbitrator but is instead

constrained to determine whether the award fails analysis under § 11–15–23.”). The

applicable provision under Mississippi’s construction arbitration statutes provides

(1) Upon application made by a party to the arbitration within ninety (90) days
after receipt of a copy of the award, the court shall modify or correct the award
where:

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 (a) There is an evident miscalculation of figures or an evident
mistake in the description of any person, thing or property
referred to in the award;
...
(2) If such application is granted, the court shall modify and correct the award
so as to effect its intent and shall confirm the award as so modified and
corrected; otherwise, the court shall confirm the award as made.

Miss. Code Ann. § 11-15-135 (Rev. 2004).

¶14. “A district court enforcing an arbitration award does not engage in a de novo review

of the award”; rather, “it may reverse or modify the award only on specified grounds.”

Parsons & Whittemore Alabama Mach. and Servs. Corp. v. Yeargin Constr. Co., Inc., 744

F. 2d 1482, 1484 (Ala. Ct. App. 1984). This Court embraces an identical standard, requiring

that trial courts narrowly focus their judicial review of arbitration awards on those extremely

limited exceptions outlined by statute. Those courts limit their analysis of motions to vacate,

modify, or correct an arbitration award and do not use such review as an opportunity to

relitigate issues decided in the arbitration. See City of Hattiesburg v. Precision Constr.,

LLC, 192 So. 3d 1089, 1096 (Miss. Ct. App. 2016). Rather, courts indulge “‘every

reasonable presumption . . . in favor of the validity of arbitration proceedings.’” Wilson, 830

So. 2d at 1155 (quoting Craig, 524 So. 2d at 977).

¶15. To that end, “[t]he standard by which an appellate court reviews a trial court’s order

confirming an arbitration award under the Federal Arbitration Act is that questions of law

are reviewed de novo and findings of fact are reviewed only for clear error.” Turquoise

Props. Gulf, Inc. v. Overmyer, 81 So. 3d 1250, 1253–54 (Ala. 2011) (citing Riccard v.

Prudential Ins. Co., 307 F. 3d 1277, 1289 (11th Cir. 2002)). Although this standard applies

9
to review of awards under the FAA, this State’s arbitration act–specifically the statutes in

question–present nearly identical requirements and exceptions for this Court’s review. We

embrace this standard of review to evaluate properly the application of the statutes in

question, while reviewing the trial court’s actions for error.

A. What amounts to an evident miscalculation in an arbitration
award?

¶16. The trial court determined that the arbitrator’s award contained a “facially evident

miscalculation,” meriting a reduction of $104,507. As indicated supra, the Court has yet to

determine what amounts to an evident miscalculation justifying modification under the law.

Like the trial court, some courts have suggested that the error not only must be evident, but

that it must be facially evident from the text of the award. See generally Apex Plumbing

Supply, Inc. v. U.S. Supply Co., Inc., 142 F. 3d 188, 194 (4th Cir. 1998); Grain v. Trinity

Health, Mercy Health Servs. Inc., 551 F. 3d 374, 379 (6th Cir. 2008). Some have argued

that the miscalculation must reflect a mathematical or computational error in the award. See

generally Grain, 551 F. 3d at 378; Apex Plumbing Supply, Inc. 142 F. 3d at 194. See also

Stroh Container Co. v. Delphi Indus., Inc., 783 F. 2d 743, 749 (8th Cir. 1986) (finding that

a miscalculation under 9 U.S.C. § 11(a) is evident “when a simple formal, descriptive, or

mathematical mistake was made”). The Fifth Circuit has gone so far as to determine that

an “‘evident material [mis]calculation’ occurs ‘where the record that was before the arbitrator

demonstrates an unambiguous and undisputed mistake of fact and the record demonstrates

strong reliance on that mistake by the arbitrator in making his award.’” Prestige Ford v. Ford

Dealer Computer Servs., Inc., 324 F. 3d 391, 396 (5th Cir. 2003) (quoting Valentine

10
Sugars, Inc. v. Donau Corp., 981 F. 2d 210, 214 (5th Cir. 1993)), overruled on other

grounds.

¶17. Recently, the Mississippi Court of Appeals united these standards in City of

Hattiesburg v. Precision Constr., LLC., 192 So. 3d 1089 (Miss. Ct. App. 2016). Similar to

the matter at hand, the City of Hattiesburg court was asked to review the circuit court’s

decision to deny the City’s request to modify the arbitrator’s award based on an allegedly

evident miscalculation under Mississippi Code Section 11-15-135. Id. at 1090-91. With no

record to review and only a transcript of the arbitrator’s decision to supplement the written

award, the court considered the parties’ arguments, deferring to the arbitrator’s decision and

indulging every presumption in favor of its validity. Id. at 1093.

¶18. In this unanimous opinion, the court began by evaluating the various positions on the

meaning of “evident miscalculation.”3 It determined that neither “a mistake of fact or

misinterpretation of law by an arbitrator” could amount to an evident miscalculation; rather,

such a finding must include “a ‘mathematical error’ apparent ‘on the face of the award.’” Id.

at 1094. Further, the court adopted the Fifth Circuit’s interpretation, supra, finding an

evident material miscalculation when “the record that was before the arbitrator demonstrates

an unambiguous and undisputed mistake of fact and the record demonstrates strong reliance

on that mistake by the arbitrator in making his award.” Id. Combining these tests, the court

determined that the City had failed to establish the statutory requirement for modification.

Id.

3
Wilson, J., writing; Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Carlton and
Greenlee , JJ., concurring; Fair and James, JJ., not participating.

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¶19. Assessing this standard, we note first that the Court recognizes arbitration as a

binding, bargained-for, dispute-resolution method, and that those matters arbitrated should

not be retried by the courts of this state. See City of Hattiesburg, 192 So. 3d at 1096

(holding that “judicial review of arbitration award is narrowly limited, and a motion to

vacate, modify, or correct an arbitration award is not an opportunity to relitigate issues

decided in the arbitration.”). See also Johnson Land Co. v. C.E. Frazier Constr. Co., Inc.,

925 So. 2d 80, 86 (Miss. 2006) (holding that “arbitration is a substitute for, rather than a

mere prelude to, litigation.”). Accordingly, arbitration awards are considered final, with very

few, narrow exceptions outlined by statute. See generally Craig, 524 So. 2d at 977.

¶20. Concerning the narrow exception at issue, the Court finds that the “evident” (plain,

obvious, or clearly understood) miscalculation must be apparent from nothing more than the

four corners of the award and the contents of the arbitration record. See Apex Plumbing

Supply, Inc., 142 F. 3d at 194 (holding that “even if the claimed miscalculation . . .

constituted a ‘material mistake,’ the miscalculation was not ‘evident’ because it did not

appear on the face of the arbitration award.”). See also Overmyer, 81 So. 3d at 1257

(recognizing an evident material miscalculation of figures was “apparent on the face of the

award”). Looking to evidence beyond “the face” of the award or the arbitration record

allows the parties an opportunity to retry the matter in front of a trial judge. Not only does

this diminish the binding nature and finality of arbitration proceedings, but by seeking a new

judgment from a trial court after resolving the matter through arbitration, the parties

implicitly are deprived of their right to a jury trial if desired. See Riverboat Corp. of

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Mississippi v. Harrison Cty. Bd. of Supervisors, 198 So. 3d 289 (Miss. 2016); Edmonds v.

State, 234 So. 3d 286 (Miss. 2017) (confirming that the right to a jury trial exists in civil

matters). We fail to find any law supporting the notion that our courts should grant parties

an opportunity to present new evidence or witness testimony–even in the absence of an

arbitration record–and we decline to create such law now. Rather, we find that “[t]he

miscalculation, to be evident, must appear on the face of the award or be so readily apparent

from the documentation in the case that explanation by proofs is not necessary.” Severtson

v. Williams Constr. Co., 220 Cal. Rptr. 400, 405 (Cal. App. 2 Dist. 1985). By limiting the

trial court’s review to the arbitration award and the arbitration record alone, we ensure the

integrity of arbitration proceedings will endure, preserving parties’ right to review under the

statute.

¶21. Secondly, we distinguish the Court of Appeals’application of the Fifth Circuit

standard in the City of Hattiesburg from the matter at hand. “The Fifth Circuit has held that

‘an evident material miscalculation occurs where the record that was before the arbitrator

demonstrates an unambiguous and undisputed mistake of fact and the record demonstrates

strong reliance on that mistake by the arbitrator in making his award.’” City of Hattiesburg,

192 So. 3d at 1094 (quoting U-Save Auto Rental of Am., Inc. v. Barton, No.

3:15–CV–348–DPJ–FKB, 2016 WL 595545, at *5 (S.D. Miss. Feb. 12, 2016)). However,

because our statutes require that a miscalculation only be evident, and not also material, the

federal standard does not apply. Because the federal statute differs in this one, critical aspect,

we decline to adopt the “unambiguous and undisputed mistake of fact” test. See Barton,

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2016 WL 595545, at *5. Instead, we apply the Court of Appeals approach to modifying

arbitration agreements under the applicable Mississippi statutes and seek only to answer

whether the arbitrator made a computational or mathematical error, apparent on the face of

the award.

B. Was a miscalculation evident under this standard?

¶22. In City of Hattiesburg, the Court of Appeals noted that the City’s arguments regarding

the alleged miscalculation failed on two accounts. First, it found that “[t]he concept of an

‘evident miscalculation’ presupposes that the parties presented the arbitrator with evidence

from which a ‘correct’ calculation could have been made.” City of Hattiesburg, 192 So. 3d

at 1095. If the arbitrator’s “calculations were consistent with the evidence and argument

presented, then there [was] no miscalculation.” Id. However, with no record of the

arbitration, the court was limited in its ability to investigate the City’s claim on the evident

miscalculation. Recognizing the limitation, it moved its analysis to look to factual arguments

made by the City to support its motion. Id. There, it found that the City’s arguments failed

because, as a rule, our appellate courts do not “inquire into the evidentiary basis of the

award.” Id.

¶23. Because “[t]he City’s argument relie[d] on a series of alleged facts, assumptions,

prices, and calculations that [were] not ‘evident’ from the arbitrator’s decision or anything

else in the record,” the court held that “the City [could not] identify any evident

miscalculation of figures or any other basis for vacating or modifying the arbitrator’s award.”

City of Hattiesburg, 192 So. 3d at 1096. Caldwell’s appeal tasks this Court with the same

14
question: Can Yates identify evidence from which a different, but correct, calculation could

be made and if not, can it identify an evident miscalculation of figures? Without looking

outside the undisputed facts or relying upon testimony from a witness in the trial court, we

find that Yates is unable successfully to identify either.

¶24. We note that the extremely limited judicial scope of arbitration awards permits little

room for the Court’s analytical autonomy in this matter. See Wilson, 830 So. 2d at 1155.

According to precedent set by the Court of Appeals and the Fifth Circuit, this Court may

review (1) the arbitrator’s award, (2) the written arguments by the attorneys in their motions

to the trial court and in their briefs on appeal, (3) the oral arguments presented to the judge

regarding the motion to limit proof, and (4) all documents agreed by the parties to be part of

the record before the arbitrator. What the Court may not consider is the witness testimony

garnered during the trial court’s hearing: such consideration allowed the trial court to enter

into a fact-finding position, not appropriate under such circumstances. Our statutes

concerning the modification and vacation of awards by “an arbitral tribunal are precisely and

narrowly drawn to prohibit such complete de novo review of the substance of the award, as

distinguished from gross calculation errors or inadequacies in the makeup of the tribunal

itself.” Legion Ins. Co. v. Ins. Gen. Agency, Inc., 822 F. 2d 541, 543 (5th Cir. 1987).

Consequently, “[t]he only basis . . . for reversal of an arbitrator’s decision is a violation of

the appropriate statute.” Robinson v. Henne, 115 So. 3d 797, 800 (Miss. 2013). Such limited

review has engendered this Court’s history of deference to arbitrators, fostering “‘the general

rule [that arbitrators] are the final judges of both law and fact, and an award will not be

15
reviewed or set aside for mistake in either.’” Hutto v. Jordan, 204 Miss. 30, 36 So. 2d 809

(1948).

¶25. Importantly, relevant Mississippi law supports the trial court’s review of the

arbitrator’s award when determining whether an evident miscalculation exists. This same

law provides for the presentation of party arguments through motions and court hearings.

While written arguments and those orally presented during a hearing may not have been

identical to the arguments before the arbitrator, precedent indicates that attorney-delivered

arguments are permissible during the confirmation process of an arbitrator’s award. See

generally City of Hattiesburg, 192 So. 3d 1089 (reviewing the circuit court’s decision to

confirm an arbitration award without a transcript or a record, after conducting an evidentiary

hearing on the parties’ arguments). Likewise, when the arbitration record is not made

available to the court, and the parties agree that the documentary and tangible evidence

proffered was a part of the record before the arbitrator, a trial court may, at its discretion,

accept that evidence for review. See Wilson, 830 So. 2d at 1156–57 (“The trial court did not

abuse its discretion by” limiting its review to documents included as part of the original

arbitration record.) However, the court shall use the record evidence only in its efforts to

“confirm the award, not review its substance.” Johnson Land Co. v. C.E. Frazier Constr.

Co., Inc., 925 So. 2d 80, 86 (Miss. 2006).

¶26. Following guidelines established by the Court of Appeals and various other courts

across the country, we begin our narrow analysis by looking to the thirteen-page award for

any facially evident miscalculations or computational errors. In doing so, we find that no

16
such errors are present. Looking next to the attorney-written arguments, oral arguments, and

agreed-upon record evidence, we likewise fail to find such errors.

¶27. In addressing the alleged errors, we specifically highlight Yates’s claim regarding the

arbitrator’s approach to the retainage amounts. Yates argues that the arbitrator erroneously

dismissed the retainage claim without prejudice, asserting that the arbitration award and

disposition can either be final or not final, but that it cannot be both. The company alleges

that Caldwell’s ability to submit the retainage portion of its award to another arbitration

single-handedly warrants modification of the award, either vacating the claim entirely or

entering the award, with prejudice. We disagree and find that this claim does not amount to

an evident miscalculation. Rather, we find that the arbitrator clearly defined the retainage

amounts and subtracted them from the overall award as monies “unpaid yet remaining under

dispute.” Contrary to the explanation provided by Yates, the retainage amounts were not

included as recoverable in the award and then left open for determination at a later date.

Instead, such amounts were completely removed from the award as not ripe for review.

¶28. While we have yet to address whether arbitration awards may be partial, final, and

binding all at once, the general understanding of retainage and the information provided

through the party arguments indicate that the retainage was not yet payable. Consequently,

it was not yet clear what amounts the arbitrator should or should not award. Recognizing this

limitation, the arbitrator’s award contemplates retainage based on the original subcontract

and reserves its resolution for when the specific amounts become due. We find no error in

this conclusion.

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¶29. Reviewing the award, the parties’ arguments, and the agreed-upon record, we fail to

find that the arbitrator erroneously duplicated costs of labor and relied on such a duplication

in making his award. Nor can we ascertain that the arbitrator erred by excluding the

retainage totals. As a result, the trial court exceeded its jurisdiction by assuming the role of

factfinder and reviewing witness testimony outside the arbitration record to determine where

and to what extent a miscalculation existed. Instead, the court should have considered only

the parties’ initial arguments, along with any agreed-upon-arbitration-record evidence

presented to supplement the written award.

C. Even if the trial court could have detected a miscalculation in
the award, was it error to allow parties to present witness
testimony?

¶30. Time and again, our appellate courts have held that “it is not appropriate for this Court

to inquire into the evidentiary basis of [an arbitrator’s] award.” D’Angelo v. Hometown

Concepts, Inc., 791 So. 2d 270, 273 (Miss. Ct. App. 2001) (affirming the trial court upon

finding that any error in the amount of damages the arbitrator awarded was not the product

of an evident miscalculation of figures, but a contested issue of fact). To do otherwise would

be to open the door to the boundless legal and evidentiary appeals that can “‘rende[r]

informal arbitration merely a prelude to a more cumbersome and time-consuming judicial

review process,’ and bring arbitration theory to grief in post arbitration process.” Hall Street

Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 588 (2008), 128 S. Ct. 1396, 1405, 170 L. Ed.

2d 254 (holding U.S.C. §§ 9, 9-11 as the substance of a national policy favoring arbitration

and its limited review, maintaining the essential quality of arbitration as its ability to

18
immediately resolve disputes). “In the years before the passage of the FAA, arbitration

awards were subject to thorough and broad judicial review . . . . In §§ 10 and 11 of the FAA,

Congress significantly limited the grounds for judicial vacatur or modification of such

awards in order to protect arbitration awards from hostile and meddlesome courts.” Hall

Street Assocs., 552 U.S. at 595. Much like Sections 10 and 11 of the FAA, the Mississippi

construction arbitration statutes significantly limit the grounds for vacation and modification

under Mississippi Code Sections 11-15-133 and 11-15-135 respectively. Courts adhering to

these rules have no need to hear witness testimony to determine whether an award should be

modified or withdrawn; rather, courts make these decisions based on the evident nature–the

clear and obvious presence–of the error in the award.

¶31. The evident nature of an award’s calculation error along with the arguments and

record evidence presented by the parties would have been enough for the trial court to make

its decision. While the trial judge determined that an evident miscalculation existed in the

award prior to hearing the witness testimony, the judge erred by later permitting the

testimony and using it to make his ultimate decision on where and to what extent the

miscalculation existed. Such an error transformed the trial court’s role in the confirmation

and modification hearing, expanding the very narrow and limited purpose of its review, and

imbuing it with the responsibility of the factfinder. Because arbitration is meant to supplant

litigation, not supplement it, the court abused its discretion by allowing witness testimony

during the award-confirmation hearing, resulting in plain error by the court.

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¶32. This Court holds that in such a situation, courts requested to confirm, modify and/or

vacate arbitration awards are not at liberty to permit the examination of witnesses. Providing

otherwise would permit courts to relitigate factual matters already decided. We previously

noted that “the confirmation of an award . . . is not a trial. Findings of fact [are]

superfluous.” Johnson Land Co., 925 So. 2d at 86 (quoting Thorgaard Plumbing &

Heating Co. v. Cty. of King, 71 Wash. 2d 126, 132 (1967)). “The object [of arbitration] is

to avoid what some feel to be the formalities, the delay, the expense and vexation of ordinary

litigation.” Id. Likewise, today we recognize that witness testimony outside the confines of

the arbitration record amounts to fact finding by the trial court, exceeding the scope of the

court’s review. Such “complete de novo review of the substance of the award” is prohibited

by our narrowly drawn statutes. Legion Ins. Co., 822 F. 2d at 543. To that end, we find that,

even if the judge was warranted in his initial determination that a miscalculation existed, it

was error for the court to permit the examination of witnesses to determine the character and

extent of the mistake.

II. Whether Caldwell is entitled to attorney’s fees and costs of appeal.

¶33. Mississippi Code Section 11-15-137 provides that “[u]pon the granting of an order

confirming, modifying or correcting an award, a judgment or decree shall be entered and be

enforced as any other judgment or decree. Costs may be awarded by the court.” Miss. Code

Ann. § 11-15-137 (Rev. 2004). Citing this statute, Caldwell asserts that Yates understood

the extremely limited standard for arbitration-award review, and because it failed to raise

cognizable grounds for the trial court to amend, alter, or vacate the award, this Court should

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award attorney’s fees and costs resulting from Yates’s motions in the trial court. Though we

find that Caldwell’s argument fails on several points under this request, the most relevant is

that the parties contracted away their right to request fees and costs.

¶34. In their original subcontract, the parties stipulated that if the two engaged in litigation

or arbitration over “a monetary claim[,] each party shall be solely responsible for its

respective costs, expenses and attorneys fees. . . .” While the determination of “‘reasonable

attorneys’ fees is a matter ordinarily within the sound discretion of the trial court,” (See

Mississippi Power & Light Co. v. Cook, 832 So. 2d 474, 486 (Miss. 2002) (quoting Gilchrist

Tractor Co. v. Stribling, 192 So. 2d 409, 418 (Miss. 1966)), this Court has long held that

“[a]bsent some statutory authority or contractual provision, attorneys’ fees cannot be awarded

unless punitive damages are also proper.” Fulton v. Mississippi Farm Bureau Cas. Ins. Co.

105 So. 3d 284, 287-88 (Miss. 2012) (citations omitted). Neither is available here.

¶35. Moreover, the Mississippi Rules of Appellate Procedure broadly describe the Court’s

role in awarding fees and costs under Rule 36. The authority under this rule provides the

Court with generous discretion in making such an award. Exercising that discretion, the

Court recognizes the parties’ agreement, holding them responsible for their individual costs

and fees and dividing the costs of appeal accordingly.

CONCLUSION

¶36. Generally, arbitrators have broad discretion in determining the remedy appropriate for

the matters before them. With statutorily guided deference, courts of this state limit their

judicial review of such proceedings, indulging “every reasonable presumption . . . in favor

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of the validity of arbitration.” Hutto v. Jordan, 36 So. 2d 809, 811 (Miss. 1948). We do not

use the statutory exceptions “to inquire into the original merits . . . or to show that in the

evidence the award ought to have been different . . . or that the decision, in view of all facts

and circumstances, was unjust.” Id. Instead, our courts employ the limited exceptions, all

while “resist[ing] the temptation to condemn imperfect proceedings without a sound statutory

basis for doing so.” Forsythe Int’l, S.A. v. Gibbs Oil Co. of Texas, 915 F. 2d 1017, 1022 (5th

Cir. 1990).

¶37. Applying this review, we find the award at issue contains no evident miscalculations

and is accurate according to the facts demonstrated by the parties to have been before the

arbitrator. Because Yates failed to show that any mathematical error appears on the face of

the award there is insufficient proof of an evident miscalculation that would compel the

Court to modify the award. Therefore, we reverse the circuit court’s decision to modify the

arbitrator’s award, and remand the case to the circuit court with directions to confirm the

award as determined by the arbitrator.

¶38. REVERSED AND REMANDED.

WALLER, C.J., RANDOLPH, P.J., KING, COLEMAN, MAXWELL, CHAMBERLIN
AND ISHEE, JJ., CONCUR. KITCHENS, P.J., SPECIALLY CONCURS WITH SEPARATE
WRITTEN OPINION JOINED BY KING, J.; COLEMAN, J., JOINS IN PART.

KITCHENS, PRESIDING JUSTICE, SPECIALLY CONCURRING:

¶39. I agree with the majority’s decision that the arbitrator’s award in this case did not

demonstrate an “evident miscalculation” within the meaning of Mississippi Code Sections

11-15-25(a) and 11-15-135(a), necessitating a modification, and that the Circuit Court of

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Neshoba County erred by allowing witness testimony during the award confirmation hearing.

I write separately solely for the purpose of making an observation.

¶40. Mississippi Code Section 11-15-1 states:

All persons, except infants and persons of unsound mind, may, by instrument
of writing, submit to the decision of one or more arbitrators any controversy
which may be existing between them, which might be the subject of an action,
and may, in such submission, agree that the court having jurisdiction of the
subject matter shall render judgment on the award made pursuant to such
submission.

Miss. Code Ann. § 11-15-1 (Rev. 2014). Mississippi Code Section 11-15-21 (Rev. 2014)

states:

Upon presentation of the articles of submission and the award to the court
designated in the submission or the court having jurisdiction of the subject
matter of the award, the court shall, upon motion, confirm the award, unless
the same be vacated or modified, or a decision thereon be postponed, as
hereinafter provided.

Miss. Code Ann. § 11-15-21 (Rev. 2014). Mississippi Code Section 11-15-25 allows any

party to the arbitration to move to modify or correct the award “[w]here there is an evident

miscalculation of figures or an evident mistake in the description of any person, thing, or

property referred to in such award . . . .” Miss. Code Ann. § 11-15-25(a) (Rev. 2014).

Mississippi Code Section 11-15-135 requires the court to modify or correct the arbitral award

when “[t]here is an evident miscalculation of figures or an evident mistake in the description

of any person, thing or property referred to in the award . . . .” Miss. Code Ann. § 11-15-

135(a) (Rev. 2014).

¶41. As the majority recognizes, this Court has held that:

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 We agree with the analysis and ruling of the Supreme Court of Washington,
in Thorgaard Plumbing & Heating Co. v. County of King, 71 Wash. 2d 126,
132, 426 P. 2d 828 (1967), that arbitration is a substitute for, rather than a
mere prelude to, litigation. The object is to avoid what some feel to be the
formalities, the delay, the expense and vexation of ordinary litigation. Id.
“[T]he confirmation of an award . . . is not a trial. Findings of fact would have
been superfluous.” Id. at 136, 426 P.2d 828. This reasoning supports the
long-standing public policy, set forth in Scottish Union & National Ins. Co.
v. Skaggs, 114 Miss. 618, 619, 75 So. 437, 438 (1917), to “permit parties to
arbitrate their differences and to give effect to a valid submission and award.”
Id. Further, the Skaggs Court articulated the public policy that the arbitration
and award statute “shall be liberally construed for the encouragement of the
settlement of disputes and the prevention of litigation.” Id.

Johnson Land Co. v. C.E. Frazier Constr. Co., Inc., 925 So. 2d 80, 86 (Miss. 2006).

¶42. The Mississippi Constitution provides that “[t]he circuit court shall have original

jurisdiction in all matters civil and criminal in this state not vested by this Constitution in

some other court, and such appellate jurisdiction as shall be prescribed by law.” Miss. Const.

art. 6, § 156. The Constitution prescribes that “[t]he powers of the government of the State

of Mississippi shall be divided into three distinct departments, and each of them confided to

a separate magistracy, to-wit: those which are legislative to one, those which are judicial to

another, and those which are executive to another.” Miss. Const. art. 1, § 1. “No person or

collection of persons, being one or belonging to one of these departments, shall exercise any

power properly belonging to either of the others.” Miss. Const. art. 1, § 2.

¶43. This Court has held that it is the province of the judiciary “to draw upon its inherent

power to prescribe rules of procedure to facilitate the administration of justice in the courts

throughout the state.” Newell v. State, 308 So. 2d 71, 78 (Miss. 1975). This Court continued:

[A]s long as rules of judicial procedure enacted by the legislature coincide
with fair and efficient administration of justice, the Court will consider them

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 in a cooperative spirit to further the state’s best interest, but when, as here, the
decades have evidenced a constitutional impingement, impairing justice, it
remains our duty to correct it.

Id.

¶44. Both parties in the present case, seasoned contractors and subcontractors, contracted

to forego any potential remedy in the courts of this State by agreeing to arbitrate their claims.

Nevertheless, being dissatisfied with the arbitral award, Yates, employing procedures

outlined in the controlling statutes, invoked the services of this State’s court system to amend

that award.

¶45. Here, but for the parties’ having made a valid agreement to arbitrate, the Circuit Court

of Neshoba County would have had original jurisdiction of the dispute. The arbitration

statutes establish rules of procedure for resolving disputes outside this State’s court system.

But the statutes go further than that by mandating that the circuit court confirm the award,

while at the same time limiting the court’s review of the award. Thus far, this Court has

forgone its constitutional prerogative by acquiescing in such legislative limitation of its

authority over matters of judicial procedure; and the statutes do appear, in the present case,

to “coincide with fair and efficient administration of justice” not resulting in a “constitutional

impingement, impairing justice.”

KING, J., JOINS THIS OPINION. COLEMAN, J., JOINS THIS OPINION IN
PART.

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