                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   January 8, 2002 Session

                 WILLIAM T. TARPLEY v. RON SEARCY, ET AL.

                     Appeal from the Circuit Court for Davidson County
                No. 99CV-1028     Marietta S. Shipley, Judge by Interchange



                     No. M2000-03094-COA-R3-CV - Filed May 7, 2002


The Circuit Court of Davidson County affirmed an arbitrator’s award despite the opponent’s claim
of the arbitrator’s bias and of erroneous calculations. We affirm.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                Affirmed and Remanded

BEN H. CANTRELL , P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.
and WILLIAM B. CAIN , JJ., joined.

Paula Ogle Blair, Nashville, Tennessee, for the appellant, Ron Searcy, Individually and d/b/a
Restoration Contractors.

William W. Burton, Murfreesboro, Tennessee, for the appellee, William T. Tarpley.

                                            OPINION

                                                 I.

      Ron Searcy, d/b/a Restoration Contractors hired William T. Tarpley to perform services for
Mr. Searcy’s business, and promised to pay him a ten percent commission for restoration work
completed. Their written agreement included an arbitration clause.

       After the business relationship ended, the parties were in a dispute over how much Mr.
Searcy owed Mr. Tarpley. Mr. Tarpley filed an action to collect $45,387.20, and the parties agreed
to submit the dispute to arbitration. After a hearing before Jerry Scott, a practicing attorney in
Murfreesboro, Mr. Scott awarded Mr. Tarpley $31,944.54.

       Mr. Tarpley filed this action to confirm the award. Mr. Searcy at first filed a simple answer
denying Mr. Tarpley’s right to the award, and then he moved to amend his answer to include a
defense of bias on the part of Mr. Scott. Mr. Scott allegedly represented Ms. Searcy’s ex-husband
in a custody dispute, and actually filed a petition on the ex-husband’s behalf after the arbitration
hearing. At the hearing, the trial judge denied Mr. Searcy’s oral motion to amend his answer again,
to challenge Mr. Scott’s calculations.

       After hearing the proof, the trial judge entered the following order:

              This cause came on to be heard on the 7th day of September, 2000, before the
       Honorable Marietta S. Shipley, Judge upon the complaint of William T. Tarpley to
       enforce an arbitration decision rendered by Attorney Jerry Scott, the answer and
       affirmative defenses of Ron Searcy seeking to vacate the award pursuant to Tenn.
       Code Ann. Section 29-5-313(a) 1 & 2, (b) and (c).

                The Court heard testimony from Jerry Scott, Ron Searcy and William T.
       Tarpley and argument of counsel from all of which the court finds that Ron Searcy
       is an intelligent business person and he signed the binding arbitration agreement on
       Marcy 29, 1999. That at the time Jerry Scott heard the case and rendered his
       decision, he was not aware that Mr. Searcy was married to his nephew’s ex-wife.
       Mr. Scott was not corrupt or partial to either side. No interest will be allowed on the
       award.

                                                  II.

         Trial courts play a limited role in reviewing arbitration awards. Arnold v. Morgan Keegan
& Co., 914 S.W.2d 445, 448 (Tenn. 1996). Under our Uniform Arbitration Act, Tenn. Code Ann.
§ 29-5-301, et seq., a court may vacate an award on limited grounds, one of which is “evident
partiality” of an arbitrator. Tenn. Code Ann. § 29-5-313(a)(2).

        In this case, however, the trial judge found as a fact that the arbitrator was not partial. That
finding is presumed to be correct, unless the evidence preponderates against it. Rule 13(d), Tenn.
R. App. P. Mr. Scott testified at the trial that his wife’s nephew had come to see him in 1997 about
a visitation dispute he was having with his ex-wife. Mr. Scott wrote a letter on his client’s behalf
to the ex-wife, who unknown to Mr. Scott, happened to be married then to Mr. Searcy. The dispute
apparently resolved itself and Mr. Scott closed his file.

        Mr. Scott testified that when he agreed to serve as an arbitrator, he did not know Mr. Searcy
and did not connect him with his client’s ex-wife. Only after he concluded the arbitration was he
contacted by his client with the specific details set forth in the petition to change custody. Based on
this largely undisputed proof we cannot say that the trial judge’s finding was erroneous.

                                                  III.

       Mr. Searcy also asserts that the trial judge erred in refusing to allow him to raise questions
about Mr. Scott’s calculations. Again we consult the statute to determine what limited review is


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available in reviewing an arbitration award. Tenn. Code Ann. § 29-5-314(a)(1) allows a court, upon
an application made within ninety days of the award, to modify the award if there is an “evident
miscalculation of figures.”

        In this case, the application came too late. Mr. Scott issued the award on May 28, 1999 and
the complaint to enforce the award was filed on July 13, 1999. Mr. Searcy did not raise any question
about the calculations until the day of the trial, August 7, 2000. Although the trial judge might have
granted the motion to amend the answer, it was certainly not an abuse of discretion to deny it.

      The judgment of the trial court is affirmed and the cause is remanded to the Circuit Court of
Davidson County for any further proceedings necessary. Tax the costs on appeal to the appellant,
Ron Searcy.




                                               _________________________________________
                                               BEN H. CANTRELL, PRESIDING JUDGE, M.S.




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