Chapter 18 - § 18.5 • TERMS OF AND RELIEF GRANTED BY THE AWARD THAT ARE "CONFIRMED" AND WITHIN THE JUDGMENT ENTERED
| Jurisdiction | Colorado |
Insofar as relief awarded, the confirmation is of the "final" award. Sometimes an arbitrator awards relief of a nature not generally within the powers of a court. However, the CRUAA specifically provides that "the fact that the relief was such that it could not or would not be granted by a court of law or equity is not grounds for vacating or refusing to confirm the award."52 No Colorado courts have considered this issue.
In entering judgment, the court may consider additional relief, discussed below.
§ 18.5.1—Judgment For Arbitrator's Fees And Expenses
The arbitration award may provide the portion of the arbitrator's fee that each party shall pay. Section 225 of the CRUAA provides that an arbitrator's expenses and fees incurred in the conduct of the arbitration shall be paid as provided in the award. In a case involving fees of a statutory parenting coordinator's "arbitrating" parenting issues, the Colorado Court of Appeals, in part relying upon the CUAA, held that, in the exercise of discretion, the district court need not hold a hearing on the request for fees.53
If the fees have not been paid, it is doubtful that an arbitrator can enter an award for himself or herself for the fees.
§ 18.5.2—Judgment For Attorney Fees For Post-Award Proceedings
Only the CRUAA has an express provision allowing the court to award attorney fees incurred in contested post-award proceedings. C.R.S. § 13-22-225(3) (2016) provides:
(3) On the application of a prevailing party to a contested judicial proceeding under section 13-22-222 [confirmation], 13-22-223 [vacation], or 13-22-224 [modification or correction], the court may add reasonable attorney fees and other reasonable expenses of litigation incurred in a judicial proceeding after the award is made to a judgment confirming, vacating without directing a rehearing, modifying, or correcting an award.
In Levy v. American Family Mutual Insurance Co. ,54 the Colorado Court of Appeals applied this statute.
In Camelot Investments, LLC v. LANDesign, LLC, the court held that the trial court had power to award costs of the judicial proceeding in the judgment, including attorney fees, if the parties had so agreed.55 The trial court dismissed the plaintiff's claims for lack of jurisdiction because of the arbitration clause. The court of appeals held the court did have jurisdiction to award attorney fees and costs as provided by the agreement.
The Eighth Circuit has held that a prevailing party can recover attorney fees when "the losing party has acted in bad faith."56 "An unjustified refusal to abide by an arbitrator's award may constitute bad faith for the purpose of awarding attorneys' fees."57
§ 18.5.3—Judgment For Costs And Expenses Of Confirmation
The FAA has no provision relating to costs and expenses. However, they may be recoverable under F.R.C.P. 54 pertaining to entry of judgment, given F.R.C.P. 81(a)(6) in general makes the rules of procedure applicable to judicial proceedings under the FAA.
Section 225 of the CRUAA provides that a "court may award the reasonable costs of the motion [for entry of judgment] and subsequent judicial proceedings" and also award "reasonable attorney fees and other reasonable expenses of litigation incurred in a judicial proceeding after the award is made to a judgment confirming, vacating without directing a rehearing, modifying, or correcting an award."
§ 18.5.4—Pre-Award, Post-Award/Prejudgment, And Post-Judgment Interest
Interest on damages or other relief potentially may be awarded for three distinct time periods:
1) Pre-award interest: for the time period prior to the arbitration award, e.g., from the date the loss or damage occurred until the date of the award;
2) Post-award/prejudgment interest: for the period from the date of the arbitrator's award until a court confirms the award and enters judgment thereon; and
3) Post-judgment interest: for the period from the date of entry of judgment until the judgment is paid.
Speaking generally, the decision regarding interest for the period prior to the issuance of the award is a matter for the arbitrator. Interest on the period from the award until judgment may be an issue for the arbitrator or the court. The decision regarding interest on a judgment is generally for the court. Of course, the agreement of the parties or applicable statutes may dictate the result.
If a federal court is rendering the judgment, the statute regarding federal interest generally applies. If the state court renders the judgment, the statute on state interest on judgments applies.
If an appellate court reverses an order vacating an award and directs confirmation and judgment be entered, post-judgment interest runs only from the date of that confirmation and judgment.58
See also § 16.6.6.
Federal Court Post-judgment Interest
Once the court enters judgment on the award, under FAA § 13, the judgment accrues interest the same as any other federal court judgment.59
Title 28, U.S.C. § 1961 provides:
(a) Interest shall be allowed on any money judgment in a civil case recovered in a district court. . . . Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield. . . .
Award of post-judgment interest is mandatory under this statute, including judgments on arbitration awards.60 The statute applies to judgments in diversity of citizenship cases.61 However, the parties may contract for a rate of interest on...
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