Capital Select Realtors, LLC v. NRT Mid-Atlantic, LLC

MATRICCIANI, J. Appellees, NRT Mid-Atlantic, LLC (“NRT”), Bonnie Ca-marata, and Dennis Roarty, filed a petition to confirm an arbitration award in the Circuit Court for Worcester County on February 12, 2009, naming as defendants the three appellants, Capital Select Realtors, LLC (“Capital Select”), Hy-ongjin Oh, and Chong Barden. The court heard the matter and issued an “Order of Confirmation and Judgment” on November 18, 2009. Appellants filed a timely notice of appeal on December 14, 2009. ⁷⁰⁰ Questions Presented Appellants present a single question for our consideration, which we have reworded, for clarity: Did the trial court err when it granted appellees’ petition to confirm the arbitration award and entered judgment in favor of appellees and against appellants in the amount of $14,475.00? For the reasons set forth below, we answer yes.

We therefore reverse the judgment of the circuit court and remand this case for further proceedings. Factual and Procedural History All parties to these proceedings are members of the Coastal Association of Realtors of Maryland, Inc. (“CAR”), and by virtue of their membership agreed to submit to arbitration any disputes arising among them and out of the real estate business. A “Request and Agreement to Arbitrate,” dated December 12, 2006, and filed with CAR, sets forth the following statement of the dispute, on behalf of appellees: A dispute ... exists between me (or my firm) and (list all persons and/or firms you wish to name as respondents to this arbitration): The form then sets forth the names of the three appellants, Hyongjin Oh, Chong Barden, and Capital Select, in blank spaces provided. The designation “Realtor Principal” appears next to the names of both Oh and Barden.

The form continues by reciting that “[tjhere is due, unpaid, and owing to me (or I retain) from the above-named persons the sum of $14,475.00.” 1 At the end of the form, the space for “Complainant(s)” contains the name “Bonnie Camarata” and her signature, as well as the name of her firm, NRT. 2 ⁷⁰¹ A “Response and Agreement to Arbitrate,” dated January 25, 2007, lists a sole “respondent,” Chong Barden—the response’s only signatory—and names a sole complainant, “Bonnie Camarata.” The response confirms the existence of a dispute in the same amount, alleging that “[t]here is due to me the sum of $14,475.00.” 3 The form also states: “I agree to abide by the arbitration award and to comply with it promptly.” The response contains an attachment, entitled “Written Notice of Legal Counsel,” which states, in its entirety: All interests of Chong Barden, Capital Select Realtors, LLC, and any affiliates or associates thereof shall be represented by the law firm of WESCOTT ROWE, LLP for the purposes of arbitration in the matter of Bonnie Camarata v. Chong Barden. WESCOTT ROWE, LLP Attorney: Robinson S. Rowe, Esq. [Address and Phone] At the conclusion of arbitration proceedings, the arbitrators provided the parties with a form titled “Award of Arbitrators,” signed by the three arbitrators. The award states: The undersigned, duly appointed as the Hearing Panel to hear and determine an arbitrable dispute between Bonnie Camarata and Hyongjin Oh, certify that on August 17, 2007, we heard the evidence of the parties and having heard all the evidence and arguments of the parties, a majority of the panel finds there was due and owing $14,475.00 to be paid by Hyongjin Oh to Bonnie Camarata, which shall be paid within 10 days from the award becoming final. After the arbitrators promulgated their award, the CAR convened a procedural review panel at Oh’s request.

On August 27, 2008, the panel issued a “Decision of the Procedur ⁷⁰² al Review Hearing Tribunal.” The decision states that it was requested by Hyongjin Oh in the matter of “Bonnie Camarata (Dennis Roarty) v. Hyongjin Oh,” and that the panel affirms “the award of the arbitration Hearing Panel,” without comment. The panel sent a copy of the decision to Chong Barden on behalf of Capital Select, along with a letter that states: Re: Decision of Procedural Review Hearing Camarata/Roarty v. Oh/Barden June 27, 2008 Enclosed pleased find Form # A-141—Decision of the Procedural Review Hearing Tribunal for the above referenced Procedural Review Hearing. Per the decision, the hearing panel has affirmed the award of the arbitration hearing Panel. Therefore, the deadline for payment of the award granted in the original arbitration hearing decision is due to Dennis Roarty of Coldwell Banker Residential Brokerage 10 days from the date of this notice.

Thank you for your cooperation and participation in this process. On February 12, 2009, appellees filed a petition to confirm the arbitration award in the Circuit Court for Worcester County, naming the three appellants as defendants in the matter: Capital Select, Hyongjin Oh, and Chong Barden. The petition alleged, in pertinent part: 3. At the conclusion of the hearing, the Award was issued ordering Defendants to pay to Plaintiff the sum of $14,475.00.

See Exhibit 3 (Award of Arbitrators)!)] 4. Respondents requested procedural review of the Award. A Procedural Review Hearing was conducted at CAR’s headquarters in Berlin, Maryland on June 27, 2008. Plaintiff Dennis Roarty represented [NRT] and Defendant Chong Barden represented Capital [Select] at the Procedural Review Hearing____ 5.

Payment was due to Plaintiff within ten (10) days of June 27, 2008. As of the date of this filing, despite numer ⁷⁰³ ous written and oral requests to Respondents’ counsel, payment has not been made. 7. The time has expired for a party to the Arbitration to request that the Award be modified or corrected, pursuant to Md.Code Ann., Cts. & Jud. Proc. § 3-223.

Likewise, the time for a party to request that the Award be vacated, pursuant to Md.Code Ann., Cts. & Jud. Proc. § 3-224, has also expired. 8. Accordingly, and pursuant to Md.Code Ann., Cts. & Jud. Proc. §§ 3-227 and 3-228, the Award is presented to this Court for an Order of Confirmation, and entry of judgment in favor of Plaintiff in the amount of $14,465, plus attorneys’ fees and costs.

WHEREFORE, Plaintiffs pray that this court enter an Order of Confirmation of the Award and judgment in favor of the Plaintiffs in the form of the Order attached hereto. Appellants moved to dismiss the petition, 4 and the court heard both the motion to dismiss and the merits of the underlying petition to confirm on November 18, 2009. Appellants argued that appellees’ requested relief was actually in the form of a petition for modification or correction of the award, which was time-barred, so that the court’s only recourse would be to confirm the award and enter a judgment solely against Oh and solely in favor of Camarata. Appellees argued that all three appellants are liable for the award.

First, appellees argued that the appellants are liable because, as members of CAR, they agreed to be bound by a code of ethics that, as set forth in a manual submitted as evidence, includes “the obligation of Realtors (principals) to ⁷⁰⁴ cause their firms to arbitrate and be bound by any award.” Appellees further argued that all three appellants are liable under the award because they were named in the request to arbitrate, they participated in arbitration, they were not dismissed, and because the name “Hyongjin Oh” was merely “shorthand” that referred to appellants, collectively. Counsel for appellants proffered that he initiated review by the tribunal only on behalf of Oh, and that Barden and Capital Select testified during the tribunal review proceedings “on behalf of Mr. Oh,” arguing that the award had been the product of a “procedural error.” Appellees proffered that they did not seek to clarify or modify the award because “none of the parties at the time interpreted it in the way that [appellants are] now arguing it to be interpreted before this Court.” Appellees referred to the aforementioned documentary evidence, as well as the fact that Barden and Capital Select participated in the tribunal review proceedings. Appellees also proffered that, because fees are “commonly paid by the firm and not by the individual in response to an award,” that the use of Oh’s name, alone, was “shorthand,” and that the arbitrators and parties understood that the award was intended to bind all three of the appellants. The trial court decided to deny appellants’ motion to dismiss and entered an order as requested by appellees, explaining its ruling thusly: ...

Capital Select Realtors, LLC, and Chong Barden’s motion to dismiss with prejudice is denied. The reason being that I think it was just simply an error that only one name was included. To me, it doesn’t make a bit of sense in the world that a judgment would only be granted against the one plaintiff and against the one defendant, and then the one that appeals are the two who won. I just can’t get that out of my head.

Yes, it would have been a whole lot better had they followed Rule 3-223 to correct or modify an award. You know, that could have been filed right here____ ⁷⁰⁵ Appellants asked the trial court to clarify its ruling, as follows: [APPELLANTS]: Judge, because we are going to review, I would ask the Court to clarify for the record, there’s been no motion or petition filed by the plaintiff asking the Court to modify the award and add the defendants’ names to it. By your order now that you’re confirming this, you’re only confirming the actual face of the award itself. So are you, in effect, modifying the award to include two additional defendants now? [THE COURT]: I think that’s what I just did. [APPELLANTS]: Okay. [THE COURT]: ...

I don’t think there’s any escaping that. I truly believe that a review of this whole record shows that the award was in favor of all three, against all three. Your clients knew that. That’s why they appealed it or that’s why they went and testified, I should say to clear that up, when there was no reason.

It just doesn’t make sense why they would do that. And for the very first time ever it’s raised now. Following the hearing, the court issued the following order and judgment: ORDERED that Judgment shall be entered in favor of Plaintiffs NRT Mid-Atlantic LLC d/b/a Coldwell Banker Residential Brokerage, Bonnie Camarata and Dennis Roarty, and against Defendants Capital Select Realtors LLC and Chong Barden, in the amount of Fourteen Thousand Four Hundred and Seventy-Five Dollars ($14,475.00).[ 5 ] Appellants filed a timely appeal on December 14, 2009. ⁷⁰⁶ Discussion A. The Maryland Uniform Arbitration Act Arbitration in Maryland is subject to the Maryland Uniform Arbitration Act (“the Arbitration Act” or “the Act”), Maryland Code (1974, 2006 Repl. Vol.), §§ 3-201 et seq. of the Courts and Judicial Proceedings Article (“C. J.”).

Section 3-219(a) of the Act provides that “[t]he arbitration award shall be in writing and signed by the arbitrators who joined in the award[,]” and subsequent sections of the Act provide for judicial review under certain circumstances. Section 3-222 of the Act provides to an aggrieved party the right to petition the arbitrators to modify or correct the award within twenty days of its delivery, while Section 3-223 provides a parallel right to petition the court within ninety days of the award’s delivery. The aggrieved party may petition the arbitrators directly “for the purpose of clarity,” C.J. § 3-222(c)(2), and may petition either the arbitrators or the court for modification or correction on three other grounds: (1) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing, or property referred to in the award; , (2) The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or (3) The award is imperfect in a matter of form, not affecting the merits of the controversy. C.J. §§ 3-222(c)(l), 3-223(b).

An aggrieved party may also seek, in the alternative, to have the court vacate the arbitration award if it is affected by some fundamental defect, namely: (1) An award was procured by corruption, fraud, or other undue means; ⁷⁰⁷ (2) There was evident partiality by an arbitrator appointed as a neutral, corruption in any arbitrator, or misconduct prejudicing the rights of any party; (3) The arbitrators exceeded their powers; (4) The arbitrators refused to postpone the hearing upon sufficient cause being shown for the postponement, refused to hear evidence material to the controversy, or otherwise so conducted the hearing, contrary to the provisions of § 3-213 of this subtitle, as to prejudice substantially the rights of a party; or (5) There was no arbitration agreement as described in § 3-206 of this subtitle, the issue was not adversely determined in proceedings under § 3-208 of this subtitle, and the party did not participate in the arbitration hearing without raising the objection. C.J. § 3-224(b). 6 If the court grants a party’s petition to modify or correct the award, then “the court shall modify or correct the award to effect its intent and confirm the award as modified or corrected[,]” C.J. § 3-223(c). 7 “Otherwise, the court shall confirm the award as made.” Id. Of course, a party need not be aggrieved by the arbitrators’ award and may nevertheless seek the court’s aid because the opposing party has failed to comply with the award. In that ease, a party may petition the court, under C.J. § 3-227, to confirm the award. 8 The court is obligated to confirm the award “unless the other party has filed an application to ⁷⁰⁸ vacate, modify, or correct the award within the time provided!;.]” C.J. § 3-227(b).

B. Interpretation The Court of Appeals recently summarized the general strategy of statutory interpretation and construction in Crof-ton Convalescent Ctr., Inc. v. Dep’t of Health & Mental Hygiene, 413 Md. 201, 216 , 991 A.2d 1257 (2010): The cardinal rule of statutory interpretation is to ascertain and effectuate the intent of the Legislature. Statutory construction