2005-726, MICHAEL CORCORAN & a. v. CRAIG W. HARMON

The defendant, Craig W. Harmon, appeals an order of the

Makris on the brief), for the defendant. Getman, Stacey, Schulthess & Steere, P.A., of Bedford (Debbie Lorusso

the plaintiffs. to press. Errors may be reported by E-mail at the following address: Hall Stewart, P.A., of Manchester (Francis G. Murphy on the brief), for

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2005-726 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-northern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as that the trial court vacate the panel’s decision to withdraw it.

p. 2 statute itself.

conflict when the panel heard the case.

because implicit in the request to confirm the withdrawn decision is a request

the final arbiter of the meaning of a statute as expressed in the words of the

justified withdrawal of the decision even though he was unaware of the alleged

vacate the decision to withdraw. We consider the issue sufficiently preserved subject to modification by judicial construction. the earlier decision in the defendant’s favor and did not ask the trial court to preserved this issue for review because he only asked the trial court to confirm possible, ascribe the plain and ordinary meanings to words used.

to review the decision of an arbitration panel to withdraw an award. We are party to the arbitration may apply to the superior court for an impropriety. At any time within one year after the award is made any

RSA 542:8 states in pertinent part: situation, the second alleged conflict created an appearance of impropriety that believe that the initial issue raised by the plaintiffs created a disqualifying Id. arbitration panel’s decision to withdraw, stating that although he did not the language used in the statute is clear and unambiguous, its meaning is not

decision has been withdrawn, there is no decision for the Court to act on.” The Greene v. Town of Deering, 151 N.H. 795, 798 (2005). When

Thus, the issue before us is whether RSA 542:8 allows the superior court discretion to withdraw a decision after concluding there was an appearance of RSA 542:8 when it ruled that the statute did not restrict the arbitration panel’s plaintiffs counter that the trial court correctly interpreted the plain meaning of

potentially disqualified neutral arbitrator wrote to the parties explaining the

arbitration panel may withdraw a decision because the trial court did not under RSA 542:8. The trial court denied the motion, ruling that “[b]ecause the The plaintiffs also argue that we should decline to decide whether the

the withdrawal by the arbitration panel precluded review of the decision. The The defendant argues that the trial court erred when it determined that

arbitration panel withdrew its decision on July 7, 2005. On July 11, 2005, the basis for a conflict of interest on the part of the neutral arbitrator. The attorney sent a second letter on June 29, 2005, detailing another possible The defendant sought confirmation of the original arbitration decision

arbitration panel’s decision was included with this letter. The plaintiffs’ of the alleged conflict of interest. A draft motion seeking withdrawal of the the ground that the arbitrators . . . exceeded their powers.” RSA 542:8. p. 3 for “fraud, corruption or misconduct by the parties or by the arbitrators, or on the decision except for “plain mistake” and from vacating the decision except

the arbitrator’s decision by precluding the court from correcting or modifying

motion to confirm the award for want of an award to confirm. RSA 542:8 court usually accords an arbitrator’s decision. For the above reasons, we hold that the trial court erred in denying the panel to withdraw its earlier decision is inconsistent with the deference the

final decision. The plain language of the statute mandates judicial deference to reviewed, other than requiring that the decision be an “award,” which means a contain any limiting language with respect to the kind of decision that may be review may be had of any final arbitration decision. The statute does not Sands, 143 N.H. 507, 509 (1999). We disagree. Under RSA 542:8, judicial pursuant to RSA 542:8 is the only means of reviewing the issues. See Merrill Lynch Futures v. exceeded their powers” by withdrawing their decision, review by the trial court The plaintiffs argue that judicial review of the decision by an arbitration

542:8. decision of arbitrators in a case submitted to them.” Dictionary, supra at 152. Therefore, the trial court has jurisdiction under RSA of arbitrators in a case submitted to them.” Webster’s Third New International In this case, the decision to withdraw the award was a “final decision . . .

arbitrator’s decision of the case”). Works 383 (M. M. Volz & E. P. Goggin eds., 5 ed. 1997) (“The award is the th decree, or judgment of arbitrators”); Elkouri and Elkouri: How Arbitration ed. 1999); see Ballentine’s Law Dictionary 116 (3d ed. 1969) (“the decision, lodged against the arbitrators and a question of whether “the arbitrators have an arbitrator or by a jury assessing damages.” Black’s Law Dictionary 147 (8 th Dictionary defines award as “a final judgment or decision, [especially] one by International Dictionary 152 (unabridged ed. 2002). Similarly, Black’s Law

noun “award” includes “a judgment, sentence, or final decision [especially] the award would still be reviewable under the statute. The plain meaning of the court’s review of an “award,” a decision of an arbitration panel to withdraw the that the arbitrators have exceeded their powers. While the language of RSA 542:8 is couched in terms of the superior misconduct by the parties or by the arbitrators, or on the ground

In this case, because there are allegations of an appearance of impropriety arbitrators, or on the ground that the arbitrators have exceeded their powers.” vacate an award “for fraud, corruption, or misconduct by the parties or by the The plain language of RSA 542:8 allows the trial court to, among other things,

for plain mistake, or vacating the award for fraud, corruption, or order confirming the award, correcting or modifying the award upon remand.

appearance of impropriety. These issues may be considered by the trial court role and must be able to recuse themselves upon an allegation of an sufficient reason. The plaintiffs counter that arbitrators fill a quasi-judicial

does have the power to withdraw its decision, it is not free to do so without

panel to vacate its own decisions. He also argues that if the arbitration panel

BRODERICK, C.J., and DUGGAN and GALWAY, JJ., concurred.

The defendant argues that RSA 5 p. 4 42:8 does not authorize the arbitration

including a decision to withdraw an award. empowers the superior court to review decisions of the arbitration panel,