Rodney L. Lewis, POLSINELLI P.C., Chicago, IL, Attorney for Defendant, Broadnet Teleservices, LLC.
BROADNET TELESERVICES, LLC'S MOTION FOR JUDGMENT AND TO CONFIRM ARBITRATION AWARD
Defendant Broadnet Teleservices, LLC ("Broadnet"), through counsel, submits Broadnet Teleservices LLC's Motion for Judgment and to Confirm Arbitration Award, requesting that this Court enter judgment confirming the September 4, 2013 Final Award ("Final Award") and clarifying that the Final Award does not incorporate the prior July 12, 2013 Interim Award ("Interim Award"). In support thereof, Broadnet states as follows:
CERTIFICATE OF CONFERRAL
Counsel for Broadnet has conferred with counsel for Victory Solutions LLC ("Victory") regarding the relief sought herein. While Broadnet moves the Court for confirmation of the Final Award, it denies that the Final Award incorporates the Interim Award. Victory noted in the Joint Initial Status Report that its position is that the Final Award incorporates the Interim Award, but Victory has not taken a direct position with regards to this motion.
1. This matter is before this Court on Victory's request for a confirmation of the Final Award. Broadnet does not oppose the confirmation of the Final Award, and requests that this Court make it an order of the Court. Victory has suggested that the Final Award incorporates by reference the Interim Award. Broadnet disputes that argument for three reasons: (1) neither the Complaint/Application for Confirmation of Arbitration Award ("Complaint") nor Victory Solutions LLC's Motion for Confirmation of Arbitration Award ("Motion to Confirm") raise that issue, (2) the Final Award is clear on its face that it does not incorporate the Interim Award, and (3) the time to clarify, vacate, modify or correct the Final Award has expired. Broadnet therefore asks that this Court clarify that the Final Award does not include the Interim Award, and therefore its judgment confirms only the Final Award.
A. Victory's Request for Confirmation of the Final Award
2. On April 15 and 16, 2013, an arbitration proceeding (the "Arbitration") was held to resolve a business dispute between Broadnet and Victory. After presiding over the Arbitration, arbitrator Champ W. Davis with the American Arbitration Association (the "Arbitrator") issued an Interim Award which, inter alia, directed Victory to submit an itemization of fees and costs and directed Broadnet to file its response. The itemization and response would enable the Arbitrator to calculate a final award which would include an award of fees. See Interim Award, attached as Exhibit A.
3. On September 4, 2013, the Arbitrator issued a Final Award fully resolving any and all issues between the parties, including the pending fee request. See Final Award, attached as Exhibit B. The Final Award awarded Victory a total amount of $327, 315.10, which included reasonable attorney's fees recoverable under Section 22(A) of the underlying agreement between the parties. See Ex. B. The Final Award did not include language allowing Victory Solutions to recover any additional fees, costs or interest incurred in confirming the Final Award.
4. On October 9, 2013, Victory filed its Complaint, requesting that "Broadnet be ordered to comply with the arbitration award in full; pay to Victory Solutions the sum of $327, 315.10, plus interest; and pay Victory Solutions its additional costs and attorneys' fees incurred in enforcing the Final Award." [Doc. No. 1]. On November 6, 2013, Broadnet filed an Answer to Complaint/Application for Confirmation of Arbitration Award ("Answer"). [Doc. No. 11].
5. Also on October 9, 2013, Victory filed its Motion to Confirm, wherein it stated that it "moves this Court for an order confirming the September 4, 2013 Final Award it obtained against Broadnet." [Doc. No. 4]. Along with its Motion to Confirm, Victory filed a Memorandum in Support of Victory Solutions LLC's Motion for Confirmation of Arbitration Award ("Memorandum"). [Doc. No. 4]. At the conclusion of the Memorandum, Victory asked that "this Court make the Final Award the final judgment of this Court." Victory did not make a request for any additional amounts, such as attorney's fees or costs. On November 6, 2013, Broadnet filed Broadnet Teleservices, LLC's Response to Victory Solutions LLC's Motion for Confirmation of Arbitration Award ("Response to Motion"), stating that it does not dispute the basis for Victory's request for confirmation of the Final Award under the Federal Arbitration Act. See Response to Motion, [Doc. No. 13].
6. In its Complaint, Victory acknowledged that the arbitrator issued a Final Award on September 4, 2013, and that it "Awarded Victory Solutions damages against Broadnet in the total amount of $327, 315.10 in full settlement of all claims and counterclaims submitted as part of the Arbitration Proceeding." See Complaint, [Doc. No. 1], ¶¶ 12 and 13. In paragraph 14 of its Complaint, Victory further acknowledged that "all claims against all parties in the Arbitration Proceeding have been fully and finally adjudicated." See Complaint, [Doc. No. 1], ¶¶ 14. In its Answer, Broadnet admitted that all claims against all parties in the arbitration proceeding have been fully and finally adjudicated. See Answer [Doc. No. 11], ¶ 15.
7. In both its Complaint and Motion to Confirm, Victory requests that this court make the September 4, 2013 Final Award a judgment of this Court. None of Victory's pleadings request that the Final Award incorporate the Interim Award. Clearly, that request would require this court to modify the Final Award, and the date for Victory to request the Court to modify such award has past. Further, none of Victory's pleadings request that this Court confirm the Interim Award. Nonetheless, on December 9, 2013, the parties filed a Joint Initial Status Report wherein Victory stated for the first time that it believes that the Final Award incorporates the Interim Award. Broadnet disagrees with that position for the reasons stated in this Motion. [Doc. No. 17].
B. The Final Award Does not Incorporate the Interim Award
8. The language of the Interim Award unambiguously states that the Interim Award expires upon the issuance of the Final Award. See Interim Award, Ex. A. Specifically, the Interim Award states as follows:
This Interim Award shall remain in full force and effect until such time as a Final Award is rendered.
See Interim Award, Ex. A (emphasis added).
9. The language of the Final Award unambiguously states that it fully and finally resolves all matters submitted to the Arbitrator. See Final Award, Ex. B. Moreover, the Final Award contains no language expressly or impliedly incorporating the Interim Award. See Final Award, Ex. B. Rather, it states as follows:
This Award is in full settlement of all claims and counterclaims submitted to this Arbitration. All claims not ...