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02 01 10 Motion For Reconsideration

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02 01 10 Motion For Reconsideration Powered By Docstoc
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 6          IN ARBITRATION PENDING UNDER THE AUSPICES OF THE AMERICAN

 7                  ARBITRATION ASSOCIATION IN SEATTLE, WASHINGTON

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10   JUST DIRT, INC., a Washington
     Corporation,
11                                                      Case No. 75 110 Y 240 09 BRBA
                       Plaintiff,
12                                                      CLAIMANT JUST DIRT’S MOTION
     vs.                                                TO MODIFY THE ARBITRATION
13                                                      AWARD TO REFLECT AMOUNTS
     JODY MILLER CONSTRUCTION, INC., a                  UNDISPUTEDLY OWING, PLUS
     Washington Corporation                             INTEREST EARNED BY JMC ON
14                                                      MONIES PROPERLY OWING TO JDI
                       Defendant.
15   _______________
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            Pursuant to R-48 of the AAA Construction Industry Rules, Claimant Just Dirt,
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     Incorporated (“JDI”) asks the American Arbitration Association , acting through arbitrator
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     Thomas Brewer, to modify its January 11, 2010 ruling to correct an oversight in the award of
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     damages to JDI.
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                                    A.    SUMMARY OF POSITION
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23          The Arbitrator’s award failed to include amounts undisputedly paid by the Puyallup

24   School District and held by JMC for over one year. JMC does not dispute the fact that it was

25   paid $288,092.53 for work completed by JDI. The Arbitrator only addressed the disputed
26                                                              LAW OFFICES OF JAMES W. TALBOT
     MOTION FOR RECONSIDERATION - 1                                        210 Summit Avenue East
                                                                             Seattle, WA 98102
                                                                            Phone: (206) 905-7717
                                                                             Fax: (206) 319-4521
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     change orders, and omitted the undisputed sums owing. The order should be revised to
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     reflect this amount, and interest on that portion of the amount held by JMC.
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                                   B.     FACTUAL BACKGROUND
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            Attached as Exhibit A to the declaration of counsel is JMC’s Revised Exhibit 145 to
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     the arbitration hearing. It reflects an “adjusted contract balance” of $3,091,479.22. This is
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     the amount calculated by JMC before the disputed “contract change directives” or CCDs. On
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 8   that same exhibit, there is a line item for “amounts paid to JDI or on behalf of JDI”. That

 9   amount is $2,803,386.69. The difference between the numbers is $288,092.53. This reflects

10   the amount paid by the Puyallup School District and held by JMC.
11          Earlier this year, JDI filed a motion to recover these sums. Arbitrator Brewer declined
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     to rule on the motion, deciding that all issues should be considered in the hearing.
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     Inexplicably, his January 11, 2010 ruling omitted this sum, even though JMC agreed that this
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     was owed. His order only ruled on the disputed change orders, not the undisputed numbers.
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     Exhibit B.
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            Subsequent to issuance of the award, counsel for JMC and JDI have endeavored to
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18   work toward a final number that includes the sums agreed to be owed. Attached as Exhibit C

19   is the latest interpretation of the Arbitrator’s decision by JMC. Although counsel are still

20   reconciling the math, the $288,092.53 figure is on JMC’s proposal. Id.

21          JMC is also entitled to interest on that amount for the time JMC held JDI’s money. As
22   pointed out in JDI’s arbitration brief and argued at closing statement, paragraph 15 provides as
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     follows:
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                    Payments due and unpaid under this Subcontract shall bear interest
25                  from the date payment is due at such rate as the parties may agree

26                                                                LAW OFFICES OF JAMES W. TALBOT
     MOTION FOR RECONSIDERATION - 2                                         210 Summit Avenue East
                                                                              Seattle, WA 98102
                                                                             Phone: (206) 905-7717
                                                                              Fax: (206) 319-4521
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                    upon in writing or, in the absence thereof, at the rate prevailing
 2                  from time to time at the place where the Project is located.

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     Ex. D. JDI asked for an award of interest in its August 2009 motion, during the arbitration
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     hearing, and in closing statements. Talbot Decl. It was also on JDI’s submission for payment
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     provided to the arbitrator on the final day of arbitration. Id., Ex. E.
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            There was no separate agreement as to the rate of interest on these unpaid sums held by
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     JMC for months. Counsel have been in agreement that if awarded, 1% per month is appropriate.
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     Amounts owed on CCDs 180 and 159, totaling $141,313.11, were paid no later than June 1, 2009.
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     The remainder of the $288,092.53 or $146,779.42 was paid by the school district to JMC in
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11   December 2008 as part of the November 2008 pay request for sums owed on the main contract.

12   At a reasonable rate of 1% per month, that is 8 months on the first figure and 14 months on the

13   second figure. That correlates to $11,305.05 on that first figure, and $20,549.07 on the second,

14   for a total of $31,854.12. Talbot Decl., ¶ 8.

15                                           C.      ARGUMENT

16          By JMC’s own calculations, the total amount of the agreed-upon changes to the contract is
17   $3,091,479.22 and of that amount it has already paid JDI $2,803,386.69. The difference between
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     those two sums is undisputedly owing and equals $288,092.53. This number was included on
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     JMC’s own calculation of amounts owing. JMC Exhibit 145. The Arbitrator, in making his
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     award, ruled only on the disputed change orders and neglected to address the undisputed sums.
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     The Order should be modified to address this oversight, and interest on the sums awarded.
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     Alternately, the entire award should be vacated as plainly erroneous.
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                                            D.       CONCLUSION
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26                                                                  LAW OFFICES OF JAMES W. TALBOT
     MOTION FOR RECONSIDERATION - 3                                            210 Summit Avenue East
                                                                                 Seattle, WA 98102
                                                                                Phone: (206) 905-7717
                                                                                 Fax: (206) 319-4521
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            Although the Arbitrator ruled on the disputed portions of the contract, he neglected to
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     provide for an award on the undisputed sums owing, even though this issue had been briefed in
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     August of 2009. JDI respectfully requests that the award be modified to reflect the $288,092.53
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     already paid to JMC plus interest in the amount of $31,854.12. The January 11, 2010 award
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     should be increased by no less than $318,478.90.
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            DATED this _____ day of January, 2010
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 9                                                  LAW OFFICES OF JAMES W. TALBOT PLLC

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                                                    James W. Talbot, WSBA #22082
12                                                  Attorneys for plaintiff Just Dirt, Inc.

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26                                                               LAW OFFICES OF JAMES W. TALBOT
     MOTION FOR RECONSIDERATION - 4                                         210 Summit Avenue East
                                                                              Seattle, WA 98102
                                                                             Phone: (206) 905-7717
                                                                              Fax: (206) 319-4521

				
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