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Paige Electric Co. v. Davis & Feder, P.A.

Court of Appeals of Mississippi

April 11, 2017

PAIGE ELECTRIC COMPANY APPELLANT
v.
DAVIS & FEDER, P.A. APPELLEE

          DATE OF JUDGMENT: 10/30/2015

         HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, HON. LISA P. DODSON.

          ATTORNEY FOR APPELLANT: BLEWETT W. THOMAS.

          ATTORNEYS FOR APPELLEE: JAMES GRADY WYLY III KYLE STUART MORAN ADAM BLAKE HARRIS.

          BEFORE LEE, C.J., BARNES AND FAIR, JJ.

          BARNES, J.

         ¶1. Paige Electric Company (Paige Electric) filed a malpractice suit against Davis & Feder P.A., claiming the firm mishandled its legal claims and committed malpractice. Because the retainer agreement between the parties contained an arbitration clause, the case was submitted to an arbitrator, who issued an award in favor of Davis & Feder and denied Paige Electric any relief.

         ¶2. Paige Electric filed motions in the First Judicial District of Harrison County Circuit Court to declare the arbitration clause void and to vacate the arbitration award. The circuit court denied the motions, dismissing Paige Electric's claims with prejudice. Paige Electric now appeals, claiming the circuit court erred in finding that Paige Electric waived any objection to the arbitration clause by voluntarily participating in the arbitration. Paige Electric also asserts that the arbitration award in favor of Davis & Feder should be vacated, as the arbitrator exceeded his authority in violation of Mississippi Code Annotated section 11-15-23(d) (Rev. 2004) and 9 United States Code section 10(a)(4) (2012). ¶3. Finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶4. After Hurricane Katrina hit the Mississippi Gulf Coast in 2005, Southern Construction Services Inc. (SCS) hired Paige Electric as a subcontractor to provide electrical contracting on all of SCS's projects. Paige Electric s owner, Jerry Paige, was also hired by SCS as its general supervisor due to his certification in building construction and electrical contracting.

         ¶5. When SCS failed to pay Paige Electric for its services on its last project, Studio Inn, Paige Electric hired Davis & Feder to handle its claim to collect the unpaid balance of $271, 364.22. The Retainer Agreement, entered into on March 19, 2007, contained an arbitration clause, which stated:

This provision regarding arbitration of disputes shall apply to any dispute between the parties which arises from, or is related to, a claimed breach of this agreement, the professional legal services rendered by Davis & Feder, P.A. or any claim for legal and or professional malpractice, or any claim or disagreement between the parties of any kind, nature, type or description regardless of the facts or the legal theories which may be involved or asserted. . . . You are specifically agreeing to waive your right to a trial by jury regarding any claims or disputes you may have arising from this Agreement.

         The associate attorney who worked on the case, David Brisolara, pursued two separate claims against SCS on Paige Electric's behalf: (1) the collection of the unpaid balance; and (2) a lien pursuant to Mississippi Code Annotated section 85-7-181 (Rev. 1999) against Studio Inn's owner, Hancock Hotels.[1] Although Brisolara filed a notice of construction lien with the Harrison County Chancery Clerk on March 21, 2007, no suit was filed regarding the construction lien. Brisolara was successful in obtaining a default judgment of $271, 364.22 against SCS on November 7, 2007, but as SCS was insolvent at this point, efforts to collect the judgment were unsuccessful. Brisolara left Davis & Feder at the end of 2008, and the law firm terminated its representation of Paige Electric in January 2009.

         ¶6. It was not until March 2013 that Jerry Paige discovered that no lien had been placed on Hancock Hotels' property. On January 16, 2014, Paige Electric filed a malpractice suit against Davis & Feder, asserting that the firm should have "done more" to collect the company's claims against SCS. Davis & Feder moved to dismiss the complaint. On June 9, 2014, the circuit court entered an agreed order referring the case to arbitration.

         ¶7. The parties agreed to the appointment of William Larry Latham as both arbitrator and special master for purposes of presiding over third-party discovery. Following discovery, a three-day arbitration hearing was held on May 27-29, 2015, with both parties presenting expert testimony. On July 23, 2015, the arbitrator published his award, dismissing with prejudice all claims against Davis & ...


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