Present: All the Justices 

FRANK X. LACKMAN, T/A 

FRANK X. LACKMAN, BROKER 

v. Record No. 021985 OPINION BY JUSTICE ELIZABETH B. LACY 

 June 6, 2003 

LONG & FOSTER REAL 

ESTATE, INC., ET AL. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Arthur B. Vieregg, Jr., Judge 

 In this appeal, Frank X. Lackman, t/a Frank X. Lackman, 

Broker, (Lackman) seeks reversal of a judgment confirming an 

arbitration award and granting a motion for attorneys' fees. 

Because none of the various grounds Lackman asserts in support 

of reversal is meritorious, we will affirm the judgment of the 

trial court. 

BACKGROUND

 Long & Foster Real Estate, Inc., Patricia Lawless, Reggie 

Copeland (collectively "Long & Foster"), and Lackman are real 

estate brokers and members of the Northern Virginia 

Association of Realtors, Inc. (the Association). Members of 

that Association agree to submit disputes arising out of the 

real estate business to arbitration in accordance with the 

rules and regulations of the Association. In January 2001, 

Long & Foster filed a Request and Agreement to Arbitrate with 

the Association claiming that they were entitled to a $19,500 

commission which Lackman received in connection with an 
earlier sale of property. Lackman filed a Response and 

Agreement to Arbitrate, denying that Long & Foster was 

entitled to any commission. The issue presented to the 

arbitration panel was whether Lackman was the procuring agent 

in the sale of the property which generated the contested 

commission. Following an evidentiary hearing, the arbitration 

panel entered an AWARD OF ARBITRATORS, directing Lackman to 

pay Long & Foster the $19,500 commission. 

 Lackman filed an amended bill of complaint against Long & 

Foster seeking vacation of the arbitration award. In Counts I 

through V, Lackman asserted that the award should be vacated 

on four of the statutory grounds enumerated in Code § 8.01-

581.010.1 In Count VI, Lackman asserted that the trial court 

should use its equity powers to enjoin enforcement of the 

award because the arbitrators' actions prevented him from 

 1

 Code § 8.01-581.010 provides in pertinent part: 

Upon application of a party, the court shall 

vacate an award where: 

1. The award was procured by corruption, fraud or 

other undue means; 

2. There was evident partiality by an arbitrator 

appointed as a neutral, corruption in any of the 

arbitrators, or misconduct prejudicing the rights 

of any party; 

3. The arbitrators exceeded their powers; 

4. The arbitrators refused to . . . hear evidence 

material to the controversy or otherwise so 

conducted the hearing . . . in such a way as to 

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relying on his theory that the defendants engaged in 

fraudulent conduct and from relying on principles of estoppel 

and unclean hands. 

 Prior to trial, the trial court struck Count VI, holding 

that Code § 8.01-581.010 was the exclusive means for vacating 

an arbitration award. Following an evidentiary hearing, the 

trial court found the evidence insufficient to support 

vacation of the arbitration award under any of the grounds 

identified in subsections (1) through (4) of Code § 8.01-

581.010, and entered an order confirming the award. The trial 

court also awarded attorneys' fees to Long & Foster. 

In this appeal, in addition to the contentions raised in 

the trial court, Lackman challenges the constitutionality of 

Code § 8.01-581.010, as interpreted by the trial court, and 

asserts that the trial court erred in striking Count VI and in 

awarding attorneys' fees. 

DISCUSSION

Code § 8.01-581.010

Lackman first claims that Long & Foster engaged in 

fraudulent conduct in conjunction with the sale of the 

property and that such fraudulent conduct supports vacation of 

the award under subsection (1) of Code § 8.01-581.010. That 

 

substantially prejudice the rights of a party; 

. . . 

3
provision, however, allows vacation of an award if the award

was procured by fraud. Lackman's allegation regarding 

fraudulent conduct in connection with the sale of the property 

does not address procurement of the arbitration award and, 

therefore, cannot form a basis for vacation of the award under 

subsection (1) of Code § 8.01-581.010. 

Lackman next argues that the arbitrators were not 

impartial, refused to hear material evidence, and refused to 

allow certain cross-examination. This conduct, Lackman 

asserts, rises to the level of misconduct and supports 

vacation of the award under subsections (2) and (4) of Code 

§ 8.01-581.010, and violates Code § 8.01-581.04(2).2 The 

record of the arbitration hearing, however, precludes Lackman 

from prevailing on these claims. 

As noted by the trial court, at the close of the 

arbitration hearing the panel chairperson asked both parties 

whether the hearing had been conducted fairly. Lackman 

responded affirmatively. Similarly, Lackman raised no 

objection when the chairperson stated at the end of the 

proceeding that "the claimant and the respondent have 

 2

 Code § 8.01-581.04 provides 

Unless otherwise provided by the agreement: 

4
indicated that they have had an adequate opportunity to 

testify and present evidence and witnesses, and conduct cross 

examination." Moreover, review of the colloquy involving the 

disputed cross-examination testimony shows that the 

arbitration panel thought that the disputed testimony 

implicated an ethics violation, a matter not relevant to the 

arbitration proceeding. The record is devoid of any final 

ruling by the panel on that issue, any further questioning by 

Lackman following the colloquy, or any objection by Lackman to 

the panel's actions or failure to rule on the matter. This 

record clearly supports the trial court's determination that 

Lackman did not carry his burden to demonstrate that the 

arbitrators showed evident partiality or that he was precluded 

from presenting material evidence or engaging in crossexamination.

Finally, Lackman asserts that in making the award, the 

arbitration panel disregarded provisions of the underlying 

contract between the parties.3 This failure, according to 

Lackman, was "tantamount to fraud," and exceeded the powers of 

the arbitration panel. 

 

2. The parties are entitled to be heard, to 

present evidence material to the controversy and to 

cross-examine witnesses appearing at the hearing. 

3

 The "contract" on which Lackman relies includes the 

listing agreement for the property, a short listing agreement, 

5
Lackman relies on a number of cases for the proposition 

that arbitrators exceed their powers, or engage in fraud or 

misconduct, if they fail to apply the terms of the underlying 

contract. These cases are neither dispositive nor persuasive 

because they either were decided prior to the enactment of 

Code § 8.01-581.010 or involved questions not presented in 

this case.4

Included in Code § 8.01-581.010, adopted in 1986, is the 

statement that "[t]he 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 . . . the award." Therefore, 

whether an arbitration panel applies the contract between the 

parties in a manner consistent with its terms is not a matter 

for consideration by the trial court or this Court when 

reviewing an arbitration award. "A contrary conclusion would 

 

a regional sales contract, and the settlement statement for 

the property.

4 Vulcan Chem. Techs., Inc. v. Barker, 167 F.Supp.2d 867, 

871 (W.D. Va. 2001) (applying Federal Arbitration Act, 9 U.S.C 

§ 10, and federal law allowing vacation of arbitration award 

"if it shows manifest disregard of applicable law"), vacated 

and remanded sub nom. Vulcan Chem. Techs., Inc. v. Barker, 297 

F.3d 332 (4th Cir. 2002); Trustees of Asbury United Methodist 

Church v. Taylor & Parrish, Inc., 249 Va. 144, 153, 452 S.E.2d 

847, 852 (1995) (basing award on "quantum meruit," a basis not 

within the parties agreement); United Paperworkers Int'l Union 

v. Chase Bag Co., 222 Va. 324, 328, 281 S.E.2d 807, 810 (1981) 

(applying former Code § 8.01-580 which allowed vacation of 

award for "errors apparent on its face"); and Mills & Fairfax 

v. Norfolk & Western R.R. Co., 90 Va. 523, 531-32, 19 S.E. 

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permit a dissatisfied party, who by agreement voluntarily 

submitted to arbitration, to invoke the jurisdiction of a 

circuit court in an effort to relitigate the merits of the 

controversy already decided by the arbitrators." Signal Corp. 

v. Keane Fed. Sys., Inc., 265 Va. 38, 45, 574 S.E.2d 253, 257 

(2003). Correct application of the contract terms pertaining 

to that sale, while perhaps pertinent to the result reached by 

the arbitrators, is not pertinent to determining whether the 

arbitrators exceeded their powers under Code § 8.01-

581.010(3). The relevant inquiry for that determination is 

whether the issues resolved were within the scope of authority 

granted the arbitrators in the agreement to arbitrate. No 

such claim has been made in this case. 

Lackman also asserts that interpreting Code § 8.01-

581.010 to allow the arbitrators to "ignore the contract 

between the parties," renders the statute unconstitutional. 

This assertion again ignores the fact that the issue before 

the arbitration panel was whether Lackman was the procuring 

source for the sale of the property. Moreover, when agreeing 

to submit a claim to arbitration, the parties also agree that 

the decision reached by the arbitrators will not be set aside 

by a court based on traditional legal principles but only on 

 

171, 174 (1894) (applying instructions in contract for making 

arbitration decision). 

7
those grounds set out in the statute. A contractual agreement 

by the parties to abide by both the rules of arbitration and 

the arbitrators' decision does not render Code § 8.01-581.010 

unconstitutional. 

Accordingly, the trial court did not err in rejecting 

Lackman's contention that the award should be vacated because 

it was procured by fraud, because the arbitrators engaged in 

misconduct, or because the arbitrators exceeded their powers. 

Equity Power

Lackman asserts that the procedure in Code § 8.01-581.010 

is not the exclusive method for vacating an arbitration award, 

and, therefore, the trial court erred in striking Count VI of 

his amended bill of complaint in which he invoked the trial 

court's equity powers to enjoin enforcement of the arbitration 

award based on his equitable defenses of fraud, estoppel, and 

unclean hands. We disagree. 

The predecessor to the current statute, former Code 

§ 8.01-580, specifically stated that the section "shall not be 

construed to take away the power of courts of equity over 

awards." This provision continued the traditional authority 

of equity courts to review arbitration awards based on a 

"submission in pais." See e.g. Edge Hill Stock Farm, Inc. v. 

Morris, Gray & Hunter, 155 Va. 103, 108, 154 S.E. 473, 474 

(1930). The General Assembly eliminated this provision when 

8
it enacted Code § 8.01-581.010 in 1986. Elimination of the 

provision terminated the ability of a court to invoke its 

equity powers when reviewing an arbitration award. 

Thus, Code § 8.01-581.010 provides the exclusive means 

for setting aside an arbitration award, and the trial court 

correctly struck Count VI of Lackman's amended bill of 

complaint. See Signal Corp., 265 Va. at 45, 574 S.E.2d at 

257. 

Attorneys' Fees

Lackman's last assignment of error challenges the award 

of attorneys' fees entered in favor of Long & Foster. His 

objections relate to the trial court's refusal to admit 

certain documents regarding the Association's arbitration 

rules and its refusal to allow Lackman to produce an 

authenticating witness prior to entry of the order awarding 

attorneys' fees. 

The documents Lackman sought to admit apparently were in 

support of his assertion that he complied with the rules 

governing arbitration and, therefore, was not liable for 

attorneys' fees. This argument however must be considered in 

light of the following provision contained in Lackman's 

Response and Agreement to Arbitrate: 

If I do not comply with the arbitration award and 

it is necessary for any party to this arbitration 

to obtain judicial confirmation and enforcement of 

9
the arbitration award against me, I agree to pay 

the party obtaining such confirmation the costs 

and reasonable attorney's fees incurred in 

obtaining such confirmation and enforcement. 

The right to attorneys' fees and costs is invoked when there 

is non-compliance with the arbitration award. Recovery of 

attorneys' fees under this provision is not dependant on 

compliance with the rules governing this arbitration. 

Therefore, evidence regarding such compliance is not relevant 

to an award of attorneys' fees under this paragraph. 

 In this case, the arbitration award was not paid, Lackman 

instituted suit to vacate the award, and an order was entered 

confirming the arbitration award. Long & Foster incurred 

attorneys' fees in obtaining an order confirming the award. 

Under these circumstances, we cannot say that the trial court 

abused its discretion in awarding attorneys' fees to Long & 

Foster. 

 For the reasons stated above, we will affirm the order of 

the trial court. 

Affirmed.

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