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Timeliness of Appeal of Arbitration Award - Rule 71B, Ala. R. Civ. P.

Russell Construction of Alabama, Inc. v. Christopher Peat, [Ms. 1180979, May 22, 2020] __ So. 3d __ (Ala. 2020). The Court (Shaw, J.; Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur) reverses in part and affirms in part the Montgomery Circuit Court’s order vacating arbitration awards in favor of Russell Construction of Alabama, Inc. in a dispute involving the construction of a residence.

The arbitration award resolving the parties’ contract-balance dispute was issued on September 5, 2018. Under Rule 71B, Ala. R. Civ. P., a party dissatisfied with a final award is required to raise any challenge by timely filing his notice of appeal in the circuit court within 30 days of the entry of the award. Ms. **15-16. The home owner, Peat, failed to file an appeal within 30 days of September 5, 2018. The Court held “[w]e find no authority allowing a trial court to extend the time for filing the notice of appeal from an arbitrator’s award beyond the deadline provided in Rule 71B or establishing exceptions thereto. In consideration of the foregoing, we conclude that the circuit court erred in setting aside the judgment [confirming the arbitration award on the contract-balance dispute] entered by the clerk in favor of Russell.” Ms. *16.

The Court rejects Peat’s effort to invoke Rule 60 to support the circuit court’s order vacating the award because “Peat raises no grounds that could not have been raised in a timely appeal, and a Rule 60(b) motion cannot be used as a substitute for an appeal.” Ms. *16, n. 5.

As to the arbitrator’s second “Final Award” entered on March 7, 2019, which addressed subsequent breaches of a settlement agreement between the parties, the Court affirms. Within one week of the entry of that award, Peat filed an answer to Russell’s Rule 71C motion to confirm the award. Ms. *17. “Peat’s answer denied the enforceability of the award, sought a hearing, and included as stated defenses grounds for attacking the finality of the award, including fraud, as contemplated by § 6-6-14, Ala. Code 1975. Thus, the circuit court could properly have treated Peat’s answer as a timely notice of appeal to the extent that it provided notice that Peat was challenging the Final Award.” Ms. **17-18.

In its appellate brief, Russell did not include “argument and authority establishing that, based on its contents, Peat’s answer was insufficient to be deemed a notice of appeal [of the second Final Award]. ‘It is the appellant’s burden to refer this Court to legal authority that supports [his] argument.’ Madaloni v. City of Mobile, 37 So. 3d 739, 749 (Ala. 2009). Accordingly, Russell has waived this claim for purposes of appellate review.” Ms. *19.

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