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Nowicki v. Project Paint Research Labs

November 7, 2008

ROBERT NOWICKI, INDIVIDUALLY AND T/A MAGICURE AUTOMOTIVE RESTORATION, INC., AND DAN MCLAUGHLIN, INDIVIDUALLY AND T/A DAN MCLAUGHLIN, INC., APPELLEES,
v.
PROJECT PAINT RESEARCH LABS, DEFENDANT, AND CHRISTOPHER THURBER, APPELLANT.



Appeal from Shawnee District Court; CHARLES ANDREWS, JR., judge.

SYLLABUS BY THE COURT

1. On appeal from the district court's confirmation of an arbitration award, this court will not overturn the district court's findings of fact if they are supported by substantial evidence.

2. Under K.S.A. 5-408(a), an arbitrator's award shall be in writing and signed by the arbitrator. The arbitrator shall deliver a copy to each party personally or by registered mail, or as provided in the agreement.

3. Under the American Arbitration Association's rules, parties shall accept as notice and delivery of the award the placing of the award or a true copy thereof in the mail addressed to the parties or their representatives at the last known addresses, personal or electronic service of the award, or the filing of the award in any other manner that is permitted by law.

4. A court's review of an arbitration award is limited to the statutory grounds listed in K.S.A. 5-412(a). A court must presume an award is valid unless one of the specific grounds is proven.

5. Interpretation and application of a statute is a question of law subject to an appellate court's unlimited review.

6. The party who attacks an arbitration award on appeal must designate a record sufficient to establish the claimed error. Without an adequate record, the claim of alleged error fails.

The opinion of the court was delivered by: Marquardt, J.

Affirmed.

Before MALONE, P.J., ELLIOTT and MARQUARDT, JJ.

Christopher Thurber appeals a grant of summary judgment confirming an arbitration award. We affirm.

Magicure Automotive Restoration, Inc., a Pennsylvania corporation (Magicure); Robert Nowicki, owner and president of Magicure; Dan McLaughlin, Inc., a New Jersey corporation (Dan McLaughlin, Inc.); and Dan McLaughlin, owner and president of Dan McLaughlin, Inc. (collectively Plaintiffs), entered into a state distributorship agreement in January 2004 and May 2004 with Project Paint Research Labs, Inc. (Project Paint), a Kansas corporation.

The parties agreed that all disputes over their contract would be settled by arbitration with the American Arbitration Association (AAA) located in Philadelphia.

Robert M. Fellheimer, the attorney representing the Plaintiffs, sent demands for arbitration (demands) to Project Paint on March 20 and 21, 2006. The demands stated that the nature of the dispute was: "Respondents [Defendants] sold a product that was suppose[d] to repair scratches and defects to cars in a professional manner in approximately 40 minutes. The product failed in all aspects and the claimants [Plaintiffs] are entitled to recover damages." Thurber and Dale Lomax were listed as respondents because they were Project Paint's officers and personally represented the "efficacy" of the product.

Plaintiffs listed as damages the purchase price of the distributorship; costs of supplies and materials; loss of time and materials in attempting to make the product work; loss of profits; loss of the bargain; loss of good will; punitive damages; and attorney fees.

Notice of the arbitration proceeding was sent to all parties on October 16, 2006, informing them that the arbitration was scheduled for January 17-19, 2007. On January 11, 2007, Thurber advised the arbitrator, Bernard Beitch, that he would not participate or attend the arbitration hearing. Thurber also told the AAA case manager that he would not appear at or participate in the arbitration proceeding. The arbitration proceeding was held in Philadelphia without Thurber.

During the arbitration, Plaintiffs provided Beitch with promotional videotapes, automobile parts which had been treated with the product, the agreements, and the testimony of several ...


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