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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1055 September Term, 2003

ALEXANDER J. MANDL v. SUE BAILEY

Salmon, Eyler, Deborah S., Sharer, JJ. Opinion by Eyler, Deborah S., J.

Filed: September 30, 2004

In the Circuit Court for Montgomery County, Sue Bailey, M.D., the appellee, filed a three-count petition to vacate an original arbitration award and a modified arbitration award issued in her contractual dispute with her ex-husband Alexander J. Mandl, the appellant. (count I); She alleged that the awards were procured by fraud that the Arbitrator had refused to hear evidence

material to the parties' controversy (count II); and that the Arbitrator had exceeded his authority in modifying a part of the original award (count III). Mandl moved to dismiss the petition on several grounds, including that it was not timely filed. summary judgment on count II. Bailey moved for partial

After a hearing, the court granted

Bailey's motion, denied Mandl's motion to dismiss, and dismissed counts I and III for mootness. In a written order memorializing

that ruling, the court vacated the Arbitrator's award and remanded the matter to the Arbitrator for further proceedings. On appeal, Mandl raises several questions for review, which we have combined and restated as follows: I. Was the circuit court's decision to grant summary judgment in favor of Bailey on count II of the petition to vacate arbitration award legally incorrect? Was the circuit court's decision to deny Mandl's motion to dismiss legally incorrect?

II.

III. If the circuit court did not err in granting summary judgment on count II of the petition to vacate arbitration award, and in denying the motion

to dismiss, was its decision about the scope of the remand to the Arbitrator legally incorrect[1]? On Question I, we conclude that the circuit court's decision that the Arbitrator refused to hear evidence pertinent to the parties' dispute was legally incorrect. On Question II, we

conclude that the circuit court correctly denied Mandl's motion to dismiss in part. We shall vacate the circuit court's dismissal

order as to count I and remand for further proceedings on that count; vacate the court's summary judgment order as to count II and remand with instructions to the court to enter summary judgment in favor of Mandl on that count; and affirm its dismissal order as to count III. Our disposition of Question I resolves Question III

without the need for further discussion.

FACTS AND PROCEEDINGS

1

The issues as stated by Mandl in his brief are:

"I. Whether the circuit court erred in concluding that the June 27, 2002 award was not final? II. Whether the circuit court erred by not deferring to the determination of the AAA that the arbitrator had no authority to reopen the hearing under the AAA rules? III. Whether the circuit court erred in finding that, by requesting reconsideration of the alimony arrearage calculation, Mr. Mandl waived the issue of reopener? IV. Whether the circuit court erred in denying Mr. Mandl's motion to dismiss Count I of the petition as untimely? V. Whether the circuit court erred on the scope of the remand to the arbitrator?" 2

Background The parties were married on April 21, 1991, when they both were 48 years old. Each had been married previously and had The parties' marriage did not

children from those marriages.2 produce any children. The fields. she held parties are

They separated on September 15, 1996. highly accomplished in their respective

Bailey is a medical doctor. high-ranking positions

During some of the marriage, the federal government; She is a

with

otherwise, she maintained a successful private practice. sought-after motivational speaker.

Mandl is a top-rung corporate For most of the

executive in the telecommunications sector.

marriage, he was President and Chief Executive Officer of AT&T. Around the time the parties separated, Mandl left AT&T to start Associated Communications a LLC, later renamed Teligent, in Inc.

("Teligent"), Virginia. Officer.

telecommunications

company

based

Vienna,

At Teligent, Mandl was Chairman and Chief Executive

During their marriage, the parties lived an exceptionally affluent life. Montgomery County. On January 17, 1997, the parties executed a Separation and Property Settlement Agreement ("Agreement") that comprehensively They owned several houses, including one in

Mandl had been married once previously and Bailey had been married twice previously. 3

2

resolved the financial issues arising out of the demise of their marriage. They were divorced sometime later in 1997.3

In Paragraph 2 of the Agreement, Mandl promised to pay certain sums as modifiable alimony.4 The Paragraph 2 payments are in

escalating amounts, beginning at $220,000 per year, in equal quarterly payments of $55,000, for one year after execution of the Agreement, and eventually reaching $250,000 per year, in equal quarterly payments of $62,500, for the fourth year after execution of the Agreement. The payments are to continue in that amount

until Bailey's death, Mandl's death, or Bailey's receipt of a total sum of $5,000,000 (including payments that might be made pursuant to another provision of the Agreement, or payments made by Mandl voluntarily, outside the requirements of the Agreement). The parties agreed, in Paragraph 7, that the Paragraph 2 payments are subject to modification downward if Mandl suffers a material change in circumstances, "including, but not limited to, reduced compensation, retirement or disability, which affects

[Mandl's] ability to make the payments."

In such a situation,

"said payments shall be renegotiated and modified in the light of these changed circumstances." The parties also agreed, however,

The exact date of the divorce is not reflected in the record. The Agreement also contained a commitment by Mandl to pay other sums, also designated as alimony, that are not modifiable. Those payments are not at issue in this case. 4
4

3

that "increases in [Mandl's] income is [sic] not the substantial change in circumstances contemplated by [Paragraph 7]." The Agreement provided that, in the event Mandl experienced a material change in circumstances that he thought warranted a modification in the Paragraph 2 payments, he was to notify Bailey in writing; the parties would "attempt to resolve the matter through negotiation"; and, if that was not successful, would "submit the matter to binding arbitration in accordance with Paragraph 15" of the Agreement. Under Paragraph 15, "[a]ny claim or dispute arising out of or in connection with this Agreement or the interpretation or meaning of any part hereof shall be arbitrated by the parties before an arbitrator acceptable to both parties, who shall be knowledgeable in the area of dispute." If, within a one-month period after

either party requests arbitration, the parties do not select an arbitrator, "the arbitrator shall be selected, at the request of either party, by the American Arbitration Association ["AAA"], and the arbitration shall proceed in accordance with then existing rules of that Association." The award "shall be final and binding

upon both parties, and judgment may be entered thereon in any court having jurisdiction." Mandl made Paragraph 2 payments to Bailey in 1997, 1998, 1999, and 2000. His last such payment was made on December 3, 2000.

5

By letter of April 5, 2001, Mandl notified Bailey that he had suffered a material change in circumstances warranting a reduction in Paragraph 2 payments. Sometime that month, Mandl was terminated by Teligent, effective May 1, 2001. Teligent declared bankruptcy

on May 21, 2001, seeking reorganization. Bailey disputed Mandl's claim of a material change in

circumstances and claimed she was owed an arrearage. tried to resolve their disputes through

The parties without

negotiation,

success, and also attempted unsuccessfully to select an arbitrator, outside the AAA forum. Ultimately, on October 31, 2001, Bailey Mandl submitted a

submitted a demand for arbitration to the AAA. counterclaim. Arbitration Proceedings

Pursuant to the AAA process, the parties chose Bruce S. Lane, Esquire ("Arbitrator"), to arbitrate their dispute. Amy Henthorn

Jones served as the AAA's "ADR Case Manager" for the matter. Throughout the course of the arbitration, Jones was copied on orders and awards issued by the Arbitrator and on letters between counsel and the arbitrator. The arbitration Rules was in conducted effect under the AAA Commercial Before the

Arbitration

then

("AAA

Rules").

hearing, the issues for decision were defined as whether Mandl had suffered a material change in circumstances affecting his ability to make the Paragraph 2 payments required by the Agreement, so as

6

to warrant a downward modification of those payments and, if so, the amount by which the Paragraph 2 payments would be reduced; and whether Bailey was entitled to an arrearage and, if so, the amount of the arrearage. The Arbitrator determined that Mandl bore the

burden of proof on the material change in circumstances claim and Bailey bore the burden of proof on the arrearage claim. The arbitration hearing was conducted over four non-

consecutive days, beginning on May 7, 2002, and ending on May 29, 2002. The parties and several expert witnesses testified.

Numerous documents were introduced into evidence. Of relevance to the issues on appeal, Mandl testified that he had been unemployed since the demise of Teligent and, though actively seeking employment through executive search firms, had not been able to land a position and was unlikely to do so. attributed his dismal prospects to a combination of factors: He the

ongoing economic recession, including the financial aftermath of the September 11 attacks; the "literal [] collapse[]" of "the telecom world"; his age (58), which is beyond the desirable age range for incoming top-level executives; and his reputation for having taken a company into bankruptcy. Mandl further testified that, despite his job search, he had not received any employment offers. When asked whether he had been interviewed for any positions, Mandl responded that he had had "a couple of conversations with some headhunters about some

7

possibilities," which "didn't go anywhere," and that he had had one interview with a Philadelphia company that "didn't go anywhere" because "they ended up not hiring a CEO." He still was actively

seeking employment and wanted to find a position, but had "come to realize over the last six months that it is going to be a lot tougher than I thought" and that it "[m]ay not be possible at all." He characterized his employment search as an "uphill battle." At the conclusion of the hearing, on May 29, 2002, the Arbitrator announced: "[W]e stand adjourned. The record still

remains open until we get the transcript, [one of the expert witness's] documents, and any briefs that may be required." On June 20, 2002, Jones advised counsel in writing that, "[p]er the [A]rbitrator's direction, no further briefs or

memorand[a] shall be accepted or necessary and the proceedings were declared closed on June 20, 2002. Therefore, the [A]rbitrator(s)

shall have thirty (30) days from that date, or until July 20, 2002 to render the award." A week later, on June 27, 2002, the Arbitrator issued the "Award of Arbitrator" ("June 27 Award"), which was divided into seven sections. In Sections I through III, the Arbitrator decided He found that Mandl

the material change in circumstances claim.

had proven, by a preponderance of the evidence, "that there ha[d] been, since the Agreement was entered into, a material change in his circumstances, including, but not limited to, reduced

8

compensation, which affect[ed] his ability to make the payments provided for under Paragraph 2 of the Agreement." He further decided that the "present circumstances of the parties and justice require" that the amount of Paragraph 2 payments be reduced "to the sum of $62,500 per annum, payable in four (4) equal quarterly installments of $15,625."5 He also found "that no further

memoranda of law or briefs are necessary or appropriate." In Section IV, the Arbitrator determined that Bailey was entitled to an arrearage because Mandl had not had the authority to unilaterally cease making Paragraph 2 payments without an agreement by the parties to that effect. He then exercised discretion to

make the reduction in Paragraph 2 payments retroactive to November 1, 2001, "the date on which the Demand for Arbitration presumably was received by Mr. Mandl's counsel." In Section V, the Arbitrator computed the arrearage amounts that were due and owing. Using January 1, 2001, as the starting

point, he calculated the arrearage from then until September 30,

In his brief, Mandl emphasizes that the Arbitrator merely reduced the rate at which the Paragraph 2 payments are to be made, not their total amount, which remained $5,000,000. While this is technically true, unless Mandl voluntarily makes other payments that are credited against the Paragraph 2 obligation, or the obligation is otherwise satisfied in accordance with the Agreement, his obligation to make Paragraph 2 payments will end upon his death. At the reduced rate of payment, he will have to live to approximately age 123 to pay the full $5,000,000 sum. It is probable, then, that the reduced rate in Paragraph 2 payments is tantamount to a reduction in the total amount of Paragraph 2 payments to be made. 9

5

2001; for October 2001; and for November 2001 through March 31, 2002. He added those figures to arrive at a final arrearage sum of $234,374. Of particular significance to the issues on appeal, the

Arbitrator stated: In the event of any disagreement by any party regarding the foregoing calculation, the party shall immediately submit his or her calculation (based on Sections III and IV of this Award) to the Arbitrator, who will resolve any such disagreement promptly. The record of this matter will be kept open for fifteen (15) days solely for this purpose. In addition, Mr. Mandl is reminded that a quarterly payment in the amount of $15,625 for the period April - June, 2002, is, or soon will be, due and owing. Finally, in Section VI, the Arbitrator determined and assessed the administrative fees and costs of the AAA and decided they would be borne equally by the parties, and in Section VII, he concluded that each party would bear the cost of his or her own legal fees. In the last paragraph of the award, the Arbitrator stated: "This

award is in full settlement of all claims submitted to this Arbitration." On July 12, 2002, Mandl filed a motion to modify, challenging two findings respecting the arrearage, on the ground that they were miscalculations. First, he asserted that the starting date for

calculating the arrearage was March 3, 2001, not January 1, 2001, because under the Agreement his obligation to pay began 45 days after the January 17, 1997 execution date. He asserted that the

December 3, 2000 payment thus covered the period through March 2, 2001, but the June 27 Award incorrectly included part of that

10

already-paid sum in the arrearage.

Second, Mandl argued that the

arrearage should be calculated based on a retroactive modification date of April 1, 2001, not November 1, 2001, because Bailey's own conduct in failing to agree to the selection of an arbitrator, and ultimately changing counsel, had delayed the arbitration process from April 1, 2001, until November 1, 2001. By letter of July 18, 2002, Bailey contested Mandl's motion, arguing that he was attacking the substance of the June 27 Award, not merely the calculation of the arrearage, and further arguing that his arguments lacked merit in any event. There followed a

series of letters by counsel further debating their positions. On August 2, 2002, the Arbitrator held a conference with counsel. In "Interim Post-Award Order No. 1," issued on August 6

("the August 6 Award"), the Arbitrator stated that, "[a]fter extensive discussion, counsel for the parties and the Arbitrator agreed that Paragraph 2 is ambiguous as to the period of time with respect to which each quarterly alimony payment (and especially the payment of December 3, 2000) applies," and the ambiguity created two plausible interpretations that "if resolved one way will result in a greater amount due Dr. Bailey then [sic] if resolved in another way." The August 6 Award went on to set forth a procedure,

to which the parties had agreed, for gathering documents and information from prior counsel, in an effort to determine the parties' original intentions "concerning the payments due under

11

Paragraph 2," which would be submitted to the Arbitrator by August 26, 2002. After that, the Arbitrator would "make a final

determination and award regarding the arrearage and w[ould] modify Section V of the Award accordingly." Also in the August 6 Award, the Arbitrator rejected,

implicitly, Mandl's argument that the reduction in Paragraph 2 payments should have been made retroactive to April 1, 2001. The

award stated that the full $234,374 arrearage payment required by Section V of the June 27 Award was "temporarily suspended," pending resolution of the time of commencement issue, and directed Mandl to pay, in lieu thereof, $125,000, representing the total of quarterly Paragraph 2 payments in the original, unmodified amounts, for the March 3, 2001, and June 3, 2001 quarters, which "as a result of the June 27, 2002 Award, are no longer in dispute" (emphasis added). The award concluded: "In all other respects, the AWARD of June

27, 2002 is hereby reconfirmed and remains in full force and effect." Thus, the retroactivity date remained November 1, 2001.

On August 26, 2002, the parties submitted, through counsel, written memoranda and exhibits addressing the commencement date for the Paragraph 2 payments under the Agreement (the "time of

commencement" issue). That was the posture of the arbitration when, on August 30, 2002, the Washington Post and the Wall Street Journal reported that

12

Mandl

had

been

named

Chief

Executive

Officer

of

Gemplus

International SA ("Gemplus"), a major French technology company. The next day, Saturday, August 31, 2002, Bailey hand-delivered to the Arbitrator a motion to reopen the hearing for "limited, targeted discovery directed to Mr. Mandl's communications with his new employer and the terms of his employment." Washington Post article was attached. must have been in discussions with A copy of the

Bailey argued that Mandl Gemplus by May, when he

testified at the arbitration hearing, but did not disclose that fact in response to questions calling for it. Bailey accused Mandl of concealing material facts about his relationship with Gemplus and making representations about his unemployability that were, "at best, wildly exaggerated, the were if not deliberately concealed to the false." She and in

maintained

that

allegedly relevant

information change

misrepresentations

material

circumstances claim, and suggested that the Arbitrator should redecide that claim, based on evidence she anticipated would be generated in discovery. On September 3, 2002 (the day after Labor Day), before

receiving a response from Mandl, the Arbitrator issued "Interim Post-Award Order No. 2" ("the September 3 Award"), granting

Bailey's motion to reopen the arbitration hearing.

He determined,

based on press reports about Mandl's hiring, that "fairness and

13

justice require [the Arbitrator] to reopen the hearing (on a limited basis) and to reconsider his Award." He further stated:

The Arbitrator intends to ascertain whether [Mandl] failed at any time during this proceeding to disclose material information concerning his income and employment which information might have had a significant effect on the Arbitrator's Award. The September resolving the 3 Award of to stated that an expedited had and was failed schedule to for

issue

whether his

Mandl

disclose would be

information established;

material in the

income Mandl

employment to

meantime,

continue

making He (the

Paragraph 2 payments in accordance with the June 27 Award.

Arbitrator) would "rule on the proper calculation of the arrearage as part of his reconsideration of the Award." By letter of September 10, 2002, Mandl vigorously objected to the Arbitrator's decision to reopen the hearing. (His counsel had

received the September 3 Award and the August 31 motion to reopen the hearing the same day). He argued that the Arbitrator lacked

authority, under the AAA Rules, to reopen the hearing to re-decide the claims decided in the June 27 Award; rather, his authority was limited to correcting computational errors and clerical mistakes in that award. Bailey responded, on September 17, arguing that the Arbitrator in fact had the authority to reopen the hearing and modify the June 27 Award because the record was not closed; that Mandl had waived his right to challenge the Arbitrator's authority to act by seeking

14

a substantive modification to the arrearage portion of the June 27 Award that did not merely challenge the Arbitrator's calculations; and that the Arbitrator had continuing authority to modify the June 27 Award because it pertained to alimony (an argument she later abandoned). On October 7, 2002, the Arbitrator issued a "Modification to Award and Final Order" ("October 7 Award"), vacating the September 3 Award. He stated that, upon receiving the information about

Mandl's employment by Gemplus, he had been "of the view that the hearing should be reopened for the limited purpose of hearing evidence, pro and con, as to whether Mr. Mandl failed to disclose material information concerning his income and employment which information might have had a significant effect on the Arbitrator's Award." He noted that, in finding, in the June 27 Award, that

Mandl had proved that there was a material change in circumstances affecting his ability to make Paragraph 2 payments and warranting a substantial reduction in those payments, he had given "great weight" to Mandl's testimony about the loss of his job, his "fruitless search for comparable employment," and his dismal

prospects of ever finding comparable employment. After the June 27 Award was issued, the matter had "remained open, principally for the purpose of ascertaining the correct computation of certain alimony arrearages." After issuing the September 3 Award, however, he had consulted the AAA and was advised that the AAA Rules

15

"prohibit[ed] him from reopening the Hearing unless a court of competent jurisdiction so direct[ed]." Accordingly, adopting the

AAA's interpretation of its rules as his own, the Arbitrator decided to vacate the September 3 Award reopening the hearing.6 The Arbitrator then proceeded to decide the time of

commencement issue, ruling in Mandl's favor.

The parties had not The

found any documents or information pertaining to the issue.

Arbitrator determined from the plain language of the Agreement that Paragraph 2 payments were to begin on March 3, 1997, for the quarter then starting. Therefore, the arrearage properly was to be calculated on an "Alimony Year" starting March 3, not January 1. The Arbitrator with modified that Section V of the June 27 Award in

accordance

determination.

Finally,

the

Arbitrator

commented that he had selected the November 1, 2002 retroactivity date with full awareness of Mandl's contention that Bailey had acted to delay the starting date for arbitration of the parties' dispute.

Mandl has included in the record extract a September 19, 2002 letter by Jones informing the parties that Mandl would have until September 27, 2002 to respond to Bailey's September 17 letter, and "[t]hereafter, the Arbitrator, in consultation with the [AAA], will make a determination as promptly as possible as to whether in this case he may reopen the hearing as proposed by Interim Post-Award Order No. 2." Bailey complains that this letter should not have been included in the record extract because it was not part of the record. Bailey is correct that the letter is not in the record. We see no impact from its being included in the record extract, however, because its contents were stated by the Arbitrator in the October 7 Award. 16

6

Action to Vacate in Circuit Court On November 6, 2002, in the Circuit Court for Montgomery County, Bailey filed, pursuant to Md. Code (2002), section 3-224 of the Courts and Judicial Proceedings Article ("CJ"), a three-count petition to vacate the June 27 Award and the October 7 Award. In

count I, she alleged that Mandl had "conceal[ed] . . . , or fail[ed] to disclose, his putative employment relationship with Gemplus and compensation he will or has received therefrom," and therefore both awards had been procured by "corruption, fraud, or other undue means." In count II, Bailey alleged that the Arbitrator had refused to hear evidence material to the parties' controversy, that is, evidence bearing on when Mandl first took part in the process that resulted in his being hired by Gemplus, and whether he had

concealed or failed to disclose such information; and on that basis sought vacation of the June 27 and October 7 awards. Finally, in

count III, Bailey alleged that, if the court did not vacate the June 27 Award, under counts I or II, it should vacate that portion of the October 7 Award modifying the arrearage, on the ground that the Arbitrator had exceeded his authority in so doing. Before Mandl filed a responsive pleading or initial motion, Bailey moved for summary judgment on count II and requested a hearing. The next day, Mandl filed a motion to dismiss the

17

petition on a number of grounds, including that it was not timely filed as a matter of law. After the parties filed oppositions and reply memoranda, the court scheduled all motions for a single hearing, which took place on May 22, 2003. At the conclusion of the hearing, the court

announced that it was granting summary judgment in favor of Bailey on count II, and gave its reasons, which we shall discuss below. The court also announced that it was dismissing counts I and III as moot, because of its ruling on count II, and was denying Mandl's motion to dismiss. On June 11, 2003, the court issued an Order and Final Judgment granting summary judgment in favor of Bailey on count II of the complaint; vacating the October 7, 2002 Award; directing that, in accordance with CJ section 3-225(b), the Arbitrator or his

successor "shall conduct further arbitration proceedings consistent with" the court's oral ruling, a transcript of which was attached; dismissing counts I and III as moot; and denying Mandl's motion to dismiss.

STANDARD OF REVIEW
Upon motion of a party, the circuit court may grant summary judgment when there is no genuine dispute of material fact and, on the undisputed material facts, the moving party is entitled to judgment as a matter of law. Md. Rule 2-501(e) (2004); Wajer v. A

Baltimore Gas and Elec. Co., 157 Md. App. 228, 240 (2004). 18

material fact is a fact that, depending on how it is decided by the trier of fact, will affect the outcome of the case. of Educ. of Howard County, 381 Md. 646, 654 (2004). Both prongs of the summary judgment ruling are legal Arroyo v. Bd.

determinations. 301, 307 (2004).

Salamon v. Progressive Classic Ins. Co., 379 Md. For that reason, we review a circuit court's Id.; Phillips v.

decision to grant summary judgment de novo.

Allstate Indemn. Co., 156 Md. App. 729, 740 (2004).

DISCUSSION I.
(A) Arbitration is the process by which parties voluntarily agree to substitute a private tribunal for an otherwise available public tribunal to decide specified disputes. Cheek v. United Healthcare

of the Mid-Atlantic, Inc., 378 Md. 139, 146 (2003) (citing Gold Coast Mall, Inc. v. Larmar Corp., 298 Md. 96, 103 (1983)).

Arbitration is encouraged in Maryland because it provides an informal, expeditious, and inexpensive alternative to conventional litigation. RTKL Assocs., Inc. v. Baltimore Co., 147 Md. App. 647, 656 (2002). The obligation to arbitrate is a creature of contract.

Howsame v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002); Cheek, supra, 378 Md. at 147; C.W. Jackson & Assocs., Inc. v.

19

Brooks, 289 Md. 658, 666 (1981).

A party cannot be compelled to

submit a dispute to arbitration unless he has agreed to do so. Wells v. Chevy Chase Bank, F.S.B., 363 Md. 232, 249 (2001); Curtis G. Testerman Co. v. Buck, 340 Md. 569, 579 (1995). Whether parties

have agreed to arbitrate a particular dispute is a threshold question of law that is for the court to decide. Testerman, supra,

340 Md. at 579 (quoting Holmes v. Coverall North Am., Inc., 336 Md. 534 (1994)). Also, because private arbitration is a matter of contract, an arbitrator derives his power from the arbitration agreement itself. MCR of Am., Inc. v. Greene, 148 Md. App. 91, 111-12 (2002). The

parties delineate the extent of the arbitrator's authority by the scope of their agreement to arbitrate and submission to

arbitration.

Id. at 112; Barclay Townhouse Assocs. v. Stephen L. Maryland law does not

Messersmith, 67 Md. App. 493, 497 (1986). restrict arbitration to issues of fact. Renewable Natural Res. Found., 114

Soc'y of Am. Foresters v. App. 224, 235 (1997)

Md.

(quoting Contract Constr., Inc. v. Power Technology Ctr. Ltd. P'ship, 100 Md. App. 173, 185 (1994)). Unless the parties agree

otherwise, issues of fact and law are submitted to the arbitrator for decision. Soc'y of Am. Foresters, supra, 114 Md. App. at 235.

Arbitration's contractual nature is the basis for a mainstay principle of the substantive common law of arbitration: officio," a Latin phrase meaning "a task performed." 20 "functus BLACK 'S LAW

DICTIONARY 682 (7th ed. 1999); Brzowski v. Md. Home Imp. Comm'n, 114 Md. App. 615, 636 (1987). This principle holds that once the

arbitrator has fulfilled the function and purpose of his office, by making a final award, he has no more official authority and can do nothing more in regard to the subject matter of the arbitration. Thus, an arbitrator may not revisit the merits of an award after it has been issued. Brzowski, supra, 114 Md. App. at 636 (quoting

LaVale Plaza, Inc. v. R.S. Noonan, Inc., 378 F.2d 569, 572 (3d. Cir. 1967)). "`The policy which lies behind [the functus officio

principle] is an unwillingness to permit one who is not a judicial officer and who acts informally and sporadically, to re-examine a final decision which he has already rendered, because of the potential evil of outside communication and unilateral influence which might affect a new conclusion.'" Id. (quoting McClatchy

Newspapers v. Cent. Valley Typographical Union No. 46, 686 F.2d 731, 734 (9th Cir. 1982)). There are well-settled exceptions to the functus officio principle. First, an arbitrator has the power to correct a mistake evident on the face of the award. See MARTIN DOMKE , DOMKE
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