      MEMORANDUM DECISION                                                   FILED
                                                                       Jan 30 2017, 10:00 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as                          CLERK
                                                                        Indiana Supreme Court
      precedent or cited before any court except for the                   Court of Appeals
                                                                             and Tax Court
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      James F. Glass                                           J. Michael Cavosie
      Indianapolis, Indiana                                    E. Roy Rodabaugh
                                                               Easter & Cavosie
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      James F. Glass,                                          January 30, 2017

      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               49A02-1607-MI-1642
              v.                                               Appeal from the Marion Superior
                                                               Court.
                                                               The Honorable Timothy W. Oakes,
      Gilliatte General Contractors,                           Judge.
      Inc.,                                                    The Honorable Caryl Dill,
                                                               Magistrate.
      Appellee-Petitioner.                                     Cause No. 49D02-1603-MI-9612




      Darden, Senior Judge


                                       Statement of the Case
[1]   James F. Glass appeals the trial court’s grant of Gilliatte General Contractors,

      Inc.’s Petition for Confirmation of Arbitration Award and denial of Glass’s

      motion to correct error. We affirm.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1607-MI-1642 January 30, 2017     Page 1 of 9
                                                        Issues
[2]   Glass raises three issues, which we restate as:

               I.       Whether the trial court’s judgment in favor of Gilliatte is
                        defective.
               II.      Whether the trial court’s order denying Glass’s motion to
                        correct error is defective.
               III.     Whether the trial court erred by rejecting Glass’s claim of
                        fraudulent concealment.

                                 Facts and Procedural History
[3]   Gilliatte, a general contractor, and Glass, a subcontractor, apparently executed
                                                         1
      a written contract for a painting job. Glass agreed to paint the interior and

      exterior of the Indiana Soybean Experience Building at the Indiana State

      Fairgrounds. The contract included a provision to submit disputes to

      arbitration. The parties had several disputes as the work progressed, eventually

      ending Glass’s participation in the project. Gilliatte hired another

      subcontractor to complete the painting project, incurring additional expenses.


[4]   Pursuant to the written contract, Glass requested arbitration, claiming Gilliatte

      breached the contract and unfairly terminated him. Gilliatte counterclaimed,

      requesting recoupment of costs incurred in hiring a replacement subcontractor.

      Jerome O. Pitt was selected to serve as arbitrator and held an evidentiary

      hearing. On September 25, 2015, the arbitrator found in favor of Gilliatte and



      1
       Both parties refer to a written contract with a binding arbitration clause, but neither party has provided the
      Court with the contract.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1607-MI-1642 January 30, 2017                Page 2 of 9
      directed Glass to pay Gilliatte $24,868.10, which included attorney’s fees of

      $9,797.73. Glass filed a motion to reconsider. Arbitrator Pitt denied Glass’s

      request for reconsideration.


[5]   On March 17, 2016, Gilliatte began this case by filing with the trial court a

      Petition for Confirmation of Arbitration Award. Glass filed a response,

      alleging the arbitration award was invalid because it was obtained through

      fraudulent concealment. Gilliatte filed a reply to the response. Next, Glass

      filed a surreply, and Gilliatte filed a reply to the surreply.


[6]   In an order dated May 4, 2016, the trial court granted Gilliatte’s Petition for

      Confirmation of Arbitration Award, confirming the final judgment in favor of

      Gilliatte in the amount of $24,868.10. The order was initially approved and

      signed by Magistrate Caryl Dill and subsequently reviewed, approved, and

      signed by Judge Tim Oakes, the presiding judge of the trial court. Judge

      Oakes’s signature was in the form of a rubber stamp.


[7]   Glass filed a motion to correct error, and Gilliatte filed a response. On June 28,

      2016, the court denied the motion to correct error. This appeal followed.


                                   Discussion and Decision
                                      I. Validity of Judgment
[8]   Glass claims the trial court’s decision granting Gilliatte’s Petition for

      Confirmation of Arbitration Award is fundamentally defective because he

      claims Judge Oakes’s rubber-stamped signature is an inadequate substitute for a


      Court of Appeals of Indiana | Memorandum Decision 49A02-1607-MI-1642 January 30, 2017   Page 3 of 9
       handwritten signature. Gilliatte responds that the judge properly executed the

       document.


[9]    Indiana Trial Rule 58(B)(5) states a judgment shall contain “the date of the

       judgment and the signature of the judge.” The definition of a signature

       “includes, without limitation, an electronic representation of a handwritten

       signature.” Ind. Trial Rule 83(7). An electronic signature is, in essence, a form

       of a stamp, so it is reasonable to conclude a hand-stamped signature is also

       sufficient. In any event, “the sufficiency of a judgment ‘is to be tested by its

       substance rather than its form.’” Henderson v. Sneath Oil Co., Inc., 638 N.E.2d

       798, 803 (Ind. Ct. App. 1994) (quoting 46 Am. Jur. 2nd Judgments § 64

       (1969)). Glass fails to argue that the presiding judge did not authorize the use

       of the rubber stamp to signify his approval of the final judgment, much less

       demonstrate that he was prejudiced by the stamped signature. His claim must

       fail.


                                   II. Motion to Correct Error
[10]   Glass next asserts the trial court’s denial of his motion to correct error is

       erroneous because it was signed by Magistrate Dill, whom he claims was not

       authorized by statute to issue the decision alone. Gilliatte argues Glass has

       waived this claim. We agree with Gilliatte.


[11]   In City of Indianapolis v. Hicks, 932 N.E.2d 227 (Ind. Ct. App. 2010), trans.

       denied, a magistrate signed an order granting a motion to correct error. The

       party that opposed the order waited ninety-nine days before asking that the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-MI-1642 January 30, 2017   Page 4 of 9
       order be vacated because it was not signed by the presiding judge of the court.

       A panel of this Court noted that defects in the authority of court officers are

       waived if not raised through a timely objection. Id. at 231. Any objection to

       the authority of a court officer must be raised at the first instance the irregularity

       occurs or at least within such time as the tribunal is able to remedy the defect.

       Id.


[12]   In the current case, Glass is challenging Magistrate Dill’s signing of the order

       for the first time on appeal, well over one hundred days later. He contends he

       could not have presented a challenge earlier because he did not have access to

       the Clerk’s Record. We reject this contention because Magistrate Dill’s signing

       of the denial of the motion to correct error is displayed on the trial court clerk’s

       Chronological Case Summary. In addition, there is no evidence that the trial

       court clerk refused to allow Glass access to its records. We conclude Glass has

       waived his challenge to Magistrate Dill’s signing of the order denying his

       motion to correct error. See id. (party waived a challenge to the magistrate’s

       authority by failing to promptly bring the matter to the court’s attention).


                        III. Waiver of Right to Challenge Award
[13]   Before we address Glass’s challenge to the trial court’s affirmance of the

       arbitration award, Gilliatte argues that Glass waived his claim of constructive

       fraud. Addressing Gilliatte’s argument will require us to consider the statutes

       that govern judicial review of arbitration awards. When considering statutes,

       we first look to the plain language of the statutes and, if unambiguous, give

       effect to their plain meaning. Folkening v. Van Petten, 22 N.E.3d 818, 821 (Ind.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-MI-1642 January 30, 2017   Page 5 of 9
       Ct. App. 2014), trans. denied. Statutes relating to the same general subject

       matter should be construed together to produce a harmonious statutory scheme.

       Id. at 821-22.


[14]   Gilliatte points to Indiana Code section § 34-57-2-13 (1998), which provides in

       relevant part: “Upon application of a party, the court shall vacate an award

       where . . . the award was procured by corruption or fraud.” The statute further

       provides, “an application under this section shall be made within ninety (90)

       days after the mailing of a copy of the award to the applicant, except that, if

       predicated upon corruption or fraud or other undue means, it shall be made

       within ninety (90) days after such grounds are known or should have been

       known.” Id. Gilliatte argues that Glass did not present his claim of

       constructive fraud to the trial court within ninety days, so the claim is waived as

       untimely.


[15]   Gilliatte is correct that Glass did not petition the trial court to have the award

       invalidated. Nevertheless, Gilliatte filed its own petition to confirm the

       arbitration award, as permitted by statute. See Ind. Code § 34-57-1-13 (1998).

       In such a circumstance, the responding party may raise certain defenses, as

       follows:

               In all cases where an award is presented to any court of record
               for a judgment to be entered upon the award, whether the
               reference was made by submission of parties, or by rule of court,
               the adverse party may show cause against the rendition of the
               judgment on any of the following grounds:




       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-MI-1642 January 30, 2017   Page 6 of 9
               (1) The award or umpirage was obtained by fraud, corruption,
               partiality, or other undue means, or the arbitrator showed
               evidence of partiality or corruption.
               (2) The arbitrator was guilty of misconduct in:
               (A) refusing to postpone the hearing upon sufficient cause
               shown;
               (B) refusing to hear evidence material and pertinent to the
               controversy; or
               (C) any other misbehavior by which the rights of any party were
               prejudiced.
               (3) The arbitrator exceeded the arbitrator’s powers, or so
               imperfectly executed them that a mutual, final, and definite
               award on the subject-matter submitted was not made.

       Ind. Code § 34-57-1-17 (1998).


[16]   The plain language of these statutes, read together, indicates that when one

       party files a request to confirm an arbitration award, the other party may assert

       fraud, even if the other party did not file a separate petition to challenge the

       award. If we read the statutes to bar Glass’s fraud claim unless he filed a

       separate petition, then the defenses of Indiana Code section 34-57-1-17 are

       effectively nullified. We reject Gilliatte’s claim of waiver and turn to the merits

       of Glass’s fraud claim.


                                  IV. Fraudulent Concealment
[17]   If a party files a petition to enforce an arbitration award and proves the

       existence of an arbitration agreement, the award, and service of the award on

       the other party, the court may confirm the award and render judgment on it.

       Ind. Code §§ 34-57-1-14, -15 (1998). As noted above, a party opposing the
       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-MI-1642 January 30, 2017   Page 7 of 9
       confirmation and enforcement of the arbitration award may raise a number of

       defenses, including fraud. Ind. Code § 34-57-1-17. An order resolving a request

       to confirm an arbitration award is subject to appeal. Ind. Code § 34-57-2-19

       (1998).


[18]   Judicial review of arbitration awards is narrow in scope. Bopp v. Brames, 677

       N.E.2d 629, 631 (Ind. Ct. App. 1997). We set aside an award only when one of

       the grounds specified by statute for vacation of an award is demonstrated. Id.

       A party who seeks to vacate an arbitration award bears the burden of proving

       the grounds to set aside. Id. Once a factual question is determined in

       arbitration, it is finally adjudicated and cannot be relitigated. Id. at 634.


[19]   Glass argues the arbitration award was procured by fraudulent concealment

       because he presented evidence that he did not walk off the job but was instead

       unfairly terminated by Gilliatte, who had already lined up a replacement

       painter. Glass further argues the arbitrator hid this evidence. However, Glass

       fails to mention or address in his brief that Gilliatte submitted to the arbitrator

       evidence to the contrary to counter Glass’s position.


[20]   In essence, Glass’s argument is not a claim of fraud but rather a request for the

       trial court and this Court to reweigh the evidence. In the award, the arbitrator

       addressed Glass’s evidence relating to the replacement painter, concluding:

       “Prior to April 15, 2013, the only work performed by the supplemental painter

       was interior work that [Glass] believed was outside his scope of work.

       Therefore, it is questionable whether [Gilliatte] even supplemented Claimant


       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-MI-1642 January 30, 2017   Page 8 of 9
       prior to April 15, 2013.” Appellant’s App. p. 9. Thus, the arbitrator did not

       conceal Glass’s evidence, but considered it along with other evidence and ruled

       against Glass. Glass was entitled “to a fair proceeding, not a favorable result.”

       Bopp, 677 N.E.2d at 634. The trial court did not err by rejecting Glass’s

       allegation of fraud.


                                  V. Appellate Attorney’s Fees
[21]   Gilliatte requests an award of appellate attorney’s fees, claiming that Glass’s

       appeal is wholly frivolous. Pursuant to Indiana Appellate Rule 66(E), we may

       assess damages if an appeal is frivolous or was pursued in bad faith. We use

       extreme restraint when exercising our discretionary power to award damages

       on appeal because of the potential chilling effect on the exercise of the right to

       appeal. Harness v. Schmitt, 924 N.E.2d 162, 168 (Ind. Ct. App. 2010). The

       sanction is not imposed to punish mere lack of merit, but something more

       egregious. Id.


[22]   Glass did not prevail as to any of his claims, but we conclude that his appeal

       does not meet the high standards of being frivolous or pursued in bad faith. We

       reject Gilliatte’s request for attorney’s fees.


                                                Conclusion
[23]   For the foregoing reasons, we affirm the judgment of the trial court.


[24]   Affirmed.


       Bradford, J., and Altice, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-MI-1642 January 30, 2017   Page 9 of 9
