Milwaukee Police Ass'n v. City of Milwaukee

SHIRLEY S. ABRAHAMSON, J.

(dissenting). I would affirm the circuit court’s order confirming the arbitration award, because the City of Milwaukee did not serve its motion to vacate, modify or correct the award within three months after the award was filed or delivered as required by sec. 298.13, Stats.1 I believe *166the majority incorrectly interprets secs. 298.09, 298.10, 298.11 and 298.13 to give a party a choice of when to assert a defense to an arbitration award. The majority says the party may move to vacate, modify or correct the award either within the statutory three month period or when an application to confirm the award is made. As a practical matter the majority renders sec. 298.13 meaningless. The party opposing an award need not promptly object to the award. He may simply ignore the award. The successful party must then seek an order confirming the award, at which time objection to the award can be raised.

Chapter 298 must be construed as a whole and each section must be given effect. Reading secs. 298.09, 298.10, 298.11 and 298.13 together, I conclude that the legislative intent was to place the burden on the objector to move to vacate, modify or correct the award within the statutory three-month period and that, if the objector fails to do so, the proponent of the award still has nine months in which to ask the court to confirm the award. Limiting the time to challenge the award furthers the purposes of arbitration and the goal of the arbitration statutes, namely to obtain a prompt and conclusive answer to issues submitted to arbitration.

Courts interpreting state statutes similar to Wisconsin’s have construed the arbitration statutes in the manner I urge here.2 The majority opinion, instead of *167following these state court cases, follows the holdings of several federal district courts to the contrary. I do not find the cases cited by the majority persuasive. The key case upon which the majority opinion and the federal district courts rely, without discussion or analysis, is The Hartbridge Case.3 That case did not decide the issue presented here. In The Hartbridge a party to an award brought an action to confirm the award within three months of the date of service of the award. The opposing party challenged the court’s jurisdiction to confirm the award prior to the expiration of the statutory three-month period and stated that it intended to move to vacate the award within the statutory three-month period. The district court granted the motion to confirm the award apparently believing it need not hear the objections in a proceeding to confirm. The court of appeals reversed the district court’s confirmation of the award and held that objections must be made in the confirmation proceeding if the confirmation proceeding is brought prior to a motion to vacate.

The court of appeals was then faced with the problem that as a result of the appeal proceedings more than three-months had expired since the award was made, and the opposing party had not yet moved to vacate the award. The court concluded that the appeal tolled the *168three-month statutory period and that the opposing party could assert objections to the confirmation of the award when the matter was remanded. The court of appeals carefully stated that it was not deciding the broader question of an opposing party’s right to move to vacate after the statutory three-month period expired. The majority opinion’s brief quotation from The Hartbridge is misleading if it is read to mean that the court of appeals held that in all applications to confirm, the opposing party may, outside the three-month statutory time limit, move to vacate. I quote the entire portion of The Hartbridge opinion dealing with this issue in the margin.4

*169The legislative history of the Wisconsin arbitration act supports my contention that the legislature intended to allow a longer time for confirming an award than for vacating, modifying or correcting it.

Chapter 298 of the Wisconsin Statutes was adopted in 1931.5 As the majority opinion notes, the Wisconsin statute is nearly identical to the Pennsylvania arbitration statute. The Wisconsin and Pennsylvania arbitration statutes are modeled after the Uniform Arbitration Act of 1925.6 Sections 15,7 16,8 17,9 and 1810 of the Uniform *170Arbitration Act (1925) are nearly identical to secs. 298.09, 298.10, 298.11 and 298.13 of the Wisconsin Arbitration Act. The only significant difference between *171these sections of the two Acts relate to the time for making an application for an order to confirm and the time for giving notice of motion to change award. The *172Uniform Act limited the time for both motions to three months and allowed the parties to extend the time for an application for confirmation; there was no express provision in the Act for extending the time to move to vacate. The Wisconsin statutes allowed one year for applying for court confirmation of the award and allowed only three months to move to vacate, modify or correct.

The 1925 Uniform Arbitration Act was superseded by the 1955 Uniform Arbitration Act. The 1955 Act imposes no time limit on applying for a confirmation order11 and limits the time for vacating,12 modifying or *173correcting13 the award to ninety days after the delivery of a copy of the award to the applicant. The 1955 Uniform Arbitration Act has, as far as I can determine, *174been consistently interpreted to prohibit a party from moving- to vacate the award in a confirmation proceeding, if that confirmation proceeding is brought after the ninety-day period has run.14

It is clear from a comparison of these sections of the 1925 Uniform Arbitration Act and the Wisconsin Arbitration Act that the Wisconsin legislature intended that the time for vacating, modifying or correcting the award be shorter than the time for confirming it. The draftsmen of the 1955 Uniform Arbitration Act deliberately chose to limit the time for vacating the award (and not for confirming the award), because they believed that the short time limit for a motion to vacate promotes the purpose of the arbitration act.

I would affirm the circuit court’s order confirming the award because the very language of the statutory provisions in issue, the interpretations of similar statutes by courts of other jurisdictions, the legislative history of the Wisconsin Arbitration Act, and public policy all *175lead to the conclusion that Chapter 298 limits the time to move to vacate, modify or correct the award to three months after the award is filed or delivered.

I have been authorized to state that Mr. Justice Day joins in this dissenting opinion.

See. 298.13, Stats., provides:

“Notice of motion to change award. Notice of a motion to vacate, modify or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered, as proscribed by law for service of notice of a motion in an action. For the purposes of the motion any judge who *166might make an order to stay the proceedings in an action brought in the same court may make an order, to be served with the notice of motion, staying the proceedings of the adverse party to enforce the award.”

Emporium Area Jt. School Auth. v. Anundson, Const. & Bldg. Supply Co., 402 Pa. 81, 166 A.2d 269, 270 (1960); Textile Workers Union v. Uncas Printing & Finishing Co., 20 Conn. Sup. 91, 125 A.2d 236, 239 (1956); Kilby; v. St. Paul Ins. Co., 29 Conn. Sup. 22, 269 A.2d 295, 296-297 (1970); Harris v. Security Ins. Group, 140 N.J. Super 10, 354 A2d 704, 706 (1976); DeMello v. Souza, 36 *167Cal. App.3d 79, 111 Cal. Reptr. 274, 277 (1973). See also Annot., Time for Impeaching Award, 85 A.L.R.2d 779, 785-794 (1962).

Compare New York Civil Practice Act secs. 7510 and 7511, which specifically retain the New York provisions that the grounds for vacating or modifying an award may be urged in opposition to a motion to confirm although a motion based on such grounds is not timely. See Commentary, 7B McKinney’s Consolidated Laws of New York Annotated (1963); Grayson-Robinson Stores, Inc. v. Iris Constr. Corp., 7 A.D.2d 367, 183 N.Y.S.2d 695, app. den. 8 A.D.2d 698, 185 N.Y.S.2d 746 (1959), aff’d, 8 N.Y.2d 133, 202 N.Y.S.2d 303, 168 N.E.2d 377 (1960).

57 F.2d 672 (2d Cir. 1932), cert. denied, Munson Steamship Line v. North of England Steamship Co. Ltd., 288 U.S. 601 (1933).

“. . . As we understand the statute a motion to confirm puts the other party to his objections. He cannot idly stand by, allow the award to be confirmed and judgment thereon entered, and then move to vacate the award just as though no judgment existed. See Gaines v. Clark, 23 Minn. 64; Brace v. Stacy, 56 Wis. 148, 14 N.W. 51. Section 12 sets an outside limit within which a notice to vacate must be served; it does not say that such a motion may be made at any time within the three months even though the award has gone into judgment. After judgment we think the award can be vacated only if the judgment can be, and to vacate the judgment an adequate excuse must be shown for not having presented objections to the ward when the motion to confirm was heard. Consequently we think the court erred in confirming the award as of course, when it was advised that objections were to be made but could not be presented because of missing exhibits. It does not, it is true, appear why the exhibits were material to the grounds for vacation intended to be urged, but the court did not refuse a continuance for that reason. On the contrary, the judge said he had no discretion and could only confirm.

“Accordingly, the order must be reversed. Although more than three months have elapsed since the award was filed, the appellant may still assert objections to confirmation of the award. There is authority for the proposition that even after the statutory period for moving to vacate an award has expired, a party may use the statutory grounds for vacation in defense of a motion to confirm. See Matter of Picker, 130 App. Div. 88, 114 N.Y.S. 289; Shores v. Bowen, 44 Mo. 396; Hinkle v. Harris, 34 Mo. App. 223. *169But without committing ourselves to the correctness of this construction of the statute, it will suffice to say that we think the period of the appeal may be excluded from the three month period prescribed by section 12. The appeal removed the entire record from the District Court so that thereafter the appellant could not have moved to set aside the order of confirmation and to entertain a motion to vacate the award.” The Hartbridge, 57 F.2d at 672, 673.

Ch. 274, Laws of 1931.

Historical Note, 9 Uniform Laws Annotated, p. 60 (1942); Historical Note, 9 Uniform Laws Annotated, p. 76 (1957); Emporium Area Jt. School Auth. v. Anundson Const. & Bldg. Supply Co., 402 Pa. 81, 166 A.2d 269, 270 (1960).

See. 298.09, Stats.:

“Court confirmation award, time limit. At any time within one year after the award is made any party to the arbitration may apply to the court in and for the county within which such award was made for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified or corrected as prescribed in the next two sections. Notice in writing of the application shall be served upon the adverse party or his attorney 5 days before the hearing thereof.”

Sec. 15, Uniform Arbitration Act (1925):

“[Application for Order Confirming Award]. — -At any time within three months after the award is made, unless the parties shall extend the time in writing, any party to the arbitration may apply to the court for an order confirming the award, and the court shall grant such an order unless the award is vacated, modified, or corrected, as provided in the next two sections. Notice in writing of the motion must be served upon the adverse party, or his attorney, five days before the hearing thereof.”

Sec. 298.10, Stats.:

“Vacation of award, rehearing by arbitrators. (1) In either of the following cases the court in and for the county wherein the award was made must make an order vacating the award upon the application of any party to the arbitration:
“(a) Where the award was procured by corruption, fraud or undue means;
“(b) Where there was evident partiality or corruption on the part of the arbitrators, or either of them;
“(c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced;
“(d) Where 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.
“(2) Where an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.”

Sec. 16, Uniform Arbitration Act (1925) :

“[Vacation of Award; Rehearing by Arbitrators], — In any of the following cases the court shall after notice and hearing make an order vacating the award, upon the application of any party to the arbitration:
“(a) Where the award was procured by corruption, fraud or other undue means.
“(b) Where there was evident partiality or corruption in the arbitrators, or either of them.
“(c) Where the arbitrators were guilty of misconduct, in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence, pertinent and material to the controversy; or of any other misbehavior, by which the rights of any party have been prejudiced.
“(d) Where 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.

Where an award is vacated and the time, within which the agreement required the award to be made, has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.”

See. 298.11, Stats.:

“Modification of award. (1) In either of the following' eases the court in and for the county wherein the award was made must make an order modifying or correcting the award upon the application of any party to the arbitration:
“(a) Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award;
“(h) Where the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted;
“(c) Where the award is imperfect in matter of form not affecting the merits of the controversy.
“(2) The order must modify and correct the award, so as to effect the intent thereof and promote justice between the parties.”

See. 17, Uniform Arbitration Act (1925) :

“[Modification or Correction of Award], — In any of the following eases, the court shall after notice and hearing make an order modifying or correcting the award, upon the application of any party to the arbitration:
“(a) Where there was an evident miscalculation of figures, or an evident mistake in the description of any person, thing or property, referred to in the award.
“(b) Where, the arbitrators have awarded upon a matter not submitted to them.
“(c) Where the award is imperfect in a matter of form, not affecting the merits of the controversy.
“The order must modify and correct the award, so as to effect the intent thereof.”

See. 298.13, Stats.:

“Notice of motion to change award. Notice of a motion to vacate, modify or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered, as prescribed by law for service of notice of a motion in an action. For the purposes of the motion any judge who might make an order to stay the proceedings in an action brought in the same court may make an order, to be served with the notice of motion, staying the proceedings of the adverse party to enforce the award.”

*172Sec. 18, Uniform Arbitration Act (1925):

“[Notice of Motion to Vacate, Modify or Correct; Stay of Proceedings]. — Notice of a motion to vacate, modify or correct an award shall be served upon the adverse party, or his attorney, within three months after an award is filed or delivered, as prescribed by law for service of notice of a motion in an action. For the purposes of the motion any judge who might make an order to stay the proceedings, in an action brought in the same court, may make an order to be served with the notice of motion, staying the proceedings of the adverse party to enforce the award.”

Sec. 11, Uniform Arbitration Act (1955) :

“Confirmation of an Award. — Upon application of a party, the Court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in Sections 12 and 13.”

Sec. 12, Uniform Arbitration Act (1955):

“Vacating an Award, (a) Upon application of a party, the court shall vacate an award where:
“(1) The award was procured by corruption, fraud or other undue means;
“(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
“(3) The arbitrators exceeded their powers;
“(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, con*173trary to the provisions of Section 5, as to prejudice substantially the rights of a party; or
“(5) There was no arbitration agreement and the issue was not adversely determined in proceedings under Section 2 and the party did not participate in the arbitration hearing without raising the objection;
but the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.
“(b) An application under this Section shall be made within ninety days after delivery of a copy of the award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be made within ninety days after such grounds are known or should have been known.
“(c) In vacating the award on grounds other than stated in clause (5) of Subsection (a) the court may order a rehearing before new arbitrators chosen as provided in the agreement, or in the absence thereof, by the court in accordance with Section 3, or if the award is vacated on grounds set forth in clauses (3) and (4) of Subsection (a) the court may order a rehearing before the arbitrators who made the award or their successors appointed in accordance with Section 3. The time within which the agreement requires the award to be made is applicable to the rehearing and commences from the date of the order.
“(d) If the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award. As amended Aug. 1956.”

See. 13, Uniform Arbitration Act (1955) :

“Modification or Correction of Award. — (a) Upon application made within ninety days after delivery of a copy of the award to the applicant, the court shall modify or correct the award where:
“(1) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
“(2) The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
“(3) The award is imperfect in a matter of form, not affecting the merits of the controversy.
*174“(b) If the 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.
“(c) An application to modify or correct an award may be joined in the alternative with an application to vacate the award.”

Bloom v. Landy, 27 Ill. Dec. 878, 389 N.E.2d 1286, 1295 (1979); R. C. Audette & Sons, Inc. v. LaRochelle, 373 A.2d 1226, 1227 (Me. 1977); Nick-George Ltd. Partn. v. Ames-Ennis, Inc., 279 Md. 385, 368 A.2d 1001 (1977); Security Construction Co. v. Maietta, 25 Md. App. 303, 334 A.2d 133 (1975); Wacker v. Allstate Ins. Co., 251 N.W.2d 346, 350 (Minn. 1977); Component Systems, Inc. v. Murray Enterprises of Minnesota, Inc., 300 Minn. 21, 217 N.W.2d 514 (1974); Lopez & Roque Tile Co. Inc. v. Clearwater Dev. Corp., 291 So.2d 126 (Fla. App. 1974); Trustees of the Boston & Maine Corp. v. Mass. Bay Trans. Auth., 363 Mass. 386, 294 N.E.2d 340, 346 (1973); Greene v. Mari & Sons Flooring Co., Inc., 362 Mass. 560, 289 N.E.2d 860, 861 (1972).