Cold Mountain Bldrs. v. Lewis

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 41
Docket:	Kno-99-508
Argued:	February 7, 2000
Decided:	March 3, 2000

Panel:CLIFFORD, RUDMAN, SAUFLEY, ALEXANDER, and CALKINS, JJ.

COLD MOUNTAIN BUILDERS, INC.

v.

SALIM B. LEWIS et al.

ALEXANDER, J.

	[¶1]  Salim B. Lewis appeals from the judgment of the Superior Court
(Knox County, Pierson, J.) denying his motion to vacate an arbitrator's award
and granting Cold Mountain Builders, Inc.'s motion to confirm the award. 
On appeal, Lewis contends that the arbitrator refused to hear evidence
material to the controversy and thereby substantially prejudiced his rights.

I.  BACKGROUND

	[¶2]  In December 1996 and January 1997, Cold Mountain Builders,
Inc. filed suits against Salim Lewis seeking to recover payments for
renovations undertaken by Cold Mountain on two properties owned by Lewis
in Rockport.  One of the issues in dispute was whether Lewis was being
overcharged or charged for materials not actually used in the renovation of
his properties.  On September 10, 1997, Lewis filed a request for
production of documents seeking most of the documentation possessed by
Cold Mountain in connection with the renovations.  Included in the request,
at paragraph 7, was a request for any and all invoices, bills and other similar
papers for materials used in the renovations.  Some disclosures were made
and documents were produced in response to the request for production of
documents.  However, the discovery request remained outstanding and was,
apparently, never entirely resolved.  No action was initiated in the Superior
Court to enforce the discovery request regarding the invoices or any other
such materials.  
	[¶3]  On October 6, 1998, the parties agreed to arbitrate their
dispute and selected a neutral arbitrator.  The arbitration hearing was
scheduled to begin on November 10, 1998.  On November 5, counsel for
Lewis sent counsel for Cold Mountain a letter requesting that Cold Mountain
provide all invoices for materials in connection with the Lewis renovations. 
This was followed up with a subpoena, pursuant to 14 M.R.S.A. § 5933
(1980), which was received by Cold Mountain's counsel on November 9,
1998.  Cold Mountain objected to this subpoena request indicating that it
was too late and over-broad.  The matter was apparently initially discussed
with the arbitrator at the start of the hearing on November 10, 1998.  A
transcript of that discussion was not included in the record presented to
the Superior Court on appeal.  It does not appear that, on November 10,
Lewis requested a continuance to obtain court enforcement of the subpoena. 
The matter was again discussed at the conclusion of the arbitration hearing
at which point the arbitrator indicated that the request for the invoices for
materials was presented too late and that he would not enforce the subpoena
to obtain the invoices.

II.  DISCUSSION

	[¶4]  On appeal from the order of the Superior Court, Lewis
contends that the arbitrator's refusal to enforce the subpoena and require
production of all of the invoices requires vacating the award pursuant to
14 M.R.S.A. § 5938(1)(D) (1980).  Section 5938(1)(D) states that the court
shall vacate an award where "[t]he arbitrators refused to . . . hear evidence
material to the controversy . . .  as to prejudice substantially the rights of a
party."
	[¶5]  We do not read section 5938(1)(D) to require that arbitrators
hear all evidence offered by any participant to an arbitration
proceeding-regardless of whether the evidence is relevant, timely, or
otherwise has probative value to the subject of the proceedings.  Arbitrators,
like judges, have some range of discretion with regard to what evidence they
may consider.  
	[¶6]  The arbitrator in this case acted within the range of his
discretion in refusing to enforce a last minute request for production of
documents of uncertain relevance, which had originally been requested 14
months before the arbitration, but which request had not been pressed until
the eve of the arbitration proceedings.  In addition, Lewis has not
demonstrated the substantial prejudice required to be shown by section
5938(1)(D).  Accordingly, we determine that the arbitrator did not abuse the
discretion available to the arbitrator in this matter.  Thus, section
5938(1)(D) was not violated by the arbitrator's actions.  
	The entry is:
			Judgment affirmed.
Attorney for plaintiff:

Daniel A. Pileggi, Esq., (orally)
Gross, Minsky, Mogul & Singal, P.A.
P O Box 917
Bangor, ME 04402-0917

Attorney for defendant:

Jotham D. Pierce Jr., Esq., (orally)
Pierce Atwood
One Monument Square
Portland, ME 04101-1110