1 Waferboard replaces plywood in housing construction. It is made of large wood chips

adhered with phenolic resins in powdered form. The resins begin as organic liquids; the spray

drying apparatus then transforms them to powder form. Manufacturers use the powder form to

produce the waferboard. United States Court of Appeals,

Fifth Circuit.

Nos. 92-3276, 92-3462.

VALENTINE SUGARS, INC., Plaintiff-Appellant,

v.

DONAU CORPORATION, et al., Defendants-Appellees.

Jan. 15, 1993.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

I.

A.

Donau Corporati on is a marketing corporati on owned by Krishan Sudan. In 1984, Sudan

approached Gus Baldwin, the manager of Valentine Sugars, Inc., regarding a possible joint venture

to produce spray-dried phenolic resins for use as adhesives in t he manufacture of waferboard. 1

Valentine already pr o duced phenolic molding compounds. Sudan convinced Baldwin that a dryer

could be acquired and installed at the Valentine plant for under one millio n dollars. He projected that

the venture could earn handsome profits by the first quarter of 1985 with an additional $400,000 in

working capital. The companies formed the joint venture as Valdon, Inc.

The parties executed a number of agreements on June 29, 1984, under which Sudan was to

provide his secret formula for liquid resin; Valentine then wo uld produce the resin and sell it to

Valdon. Valentine was to purchase and install a spray dryer on its property, which Valdon was to

lease and use to spray dry the liquid resin. Sudan was to provide technical assistance for spray drying

and then market the powder though Donau.The agreements provided for compensation for both parties. Valentine would receive cost

plus three percent in making the resin, return of its investment in the spray dryer, monthly rent for the

lease of its equipment and premises, and half of Valdon's profits. After Valentine had recouped its

investment in the dryer, Donau was to receive royalties on the liquid resin sold to Valdon, royalties

from Valdon on dry powder produced, commissions from Valdon on sales, and one-half the profits

of Valdon.

According to the lease agreement, Valentine was to own the s pray dryer and receive a

monthly rental of $3,000, plus 1/96 of the investment cost, plus interest from Valdon for a period of

eight years. At the end of eight years, Valdon would have the option of purchase at fair market value

or extension of the lease term. The parties amended the joint venture agreement to reduce Donau's

royalties until Valentine had recouped its investment.

Valentine purchased a used spray dryer and had it installed at a total cost of over $3.5 millio n.

Valentine began manufacturing phenolic resins, and Valdon spray dried them. The resins turned out

to be faulty, and Donau was unable to make any sales. According to Sudan, the resins did not work

because Valentine refused to purchase additional equipment for use in the drying process.

After the spray dryer lay idle for three years, Valentine entered a Toll Manufacturing

Agreement with Georgia-Pacific Corp. whereby Valentine is paid to spray dry Georgia-Pacific's liquid

phenolic resins. Between April 1989 and November 1990, Valentine spray dried over thirteen million

pounds of powdered resin. Valentine contends it still has not recouped its investment, so Donau is

no t ent it led to royalties. Apparently, Sudan was correct that the dryer needed the additional

equipment, as Valentine added the necessary equipment to the dryer before producing powder for

Georgia-Pacific.

B.

Valentine filed a diversity action seeking an injunction and damages on January 6, 1986. A

year later, the district court staye d t he proceedings pending arbitration. The arbitration hearings

finally began on June 24, 1991, before a panel of the American Arbitration Association's Commercial

Arbitration Tribunal, which issued its two-page award on September 16, 1991. The relevant portion2 Certainly, the broad arbitration clause in the joint venture agreement makes the ownership of

the dryer a proper subject of arbitration. That clause calls for arbitration of any dispute "relating

to or arising out of" the agreement. When parties include such a broad arbitration clause, they of the award reads as follows:

All agreements have been terminated as of January 3, 1986.

Donau Corporati on and Kris han Sudan (hereinafter referred to as CLAIMANT) are not

entitled to any royalty payment for liquid or spray dried products produced by Valentine

Sugars, Inc. (hereinafter referred to as RESPONDENT) or by Valdon prior to January 3,

1986.

RESPONDENT fully owns spray drying equipment formerly owned by Valdon free of any ownership claims by CLAIMANT or Valdon.

RESPONDENT shall pay to CLAIMANT the sum of SIX HUNDRED THOUSAND AND

NO/100 ($600,000.00) DOLLARS.

RESPONDENT shall pay to CLAIMANT $0.03/pound for all spray dried product produced

after January 1, 1991 on the spray drying equipment formerly owned by Valdon.

Donau and Sudan moved, in the district court, on October 2, 1991, to confirm the arbitrator's

award and enter judgment. Valentine moved to vacate, mo dify, or amend the award. The district

court vacated the award, directing the parties to resubmit the matter either to the original arbitration

panel or to a new panel for rehearing. On February 24, 1992, after reconsidering its decision, the

district court confirmed the arbitration award and entered judgment.

Valentine moved to alter or amend the judgment and filed a notice of appeal on March 23,

1992, after that motion was denied. The district court denied Valentine's motion for reconsideration

on April 9, 1992. Donau and Sudan began proceedings to enforce the judgment, as Valentine had

not posted bond. On April 16, 1992, these proceedings were stayed, as Valentine apparently had filed

for bankruptcy. Valentine filed a second not ice o f appeal on May 8, 1992; the appeals were

combined.

II.

Valentine first argues that the arbitrators exceed their authority by deciding an issue not

before them—the ownership of the spray dryer. Valentine claims that Donau did not properly raise

the issue of ownership in the notice of arbitration, as no specific language in that noti ce rai ses the

issue. 2 If the arbitrator exceeded his power, the district court may vacate the award. F orsythe Int'l,intend the clause to reach all aspects of the relationship. Neal v. Hardee's Food Sys., 918 F.2d

34, 37-38 (5th Cir.1990). S.A. v. Gibbs Oil Co., 915 F.2d 1017, 1020 (5th Cir.1990). In determining whether the arbitrator

exceeded his jurisdiction, we resolve all doubts in favor of arbitrati on. M oses H. Cone Memorial

Hosp. v. Mercury Constr., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983).

The demand for arbitration asked the panel to arbitrate "a dispute concerning a commercial

matter invo lving several contracts signed on the 29th day of June, 1984...." We thi nk thi s broad

language gave the arbitrators the power to do whatever was necessary to resolve any disputed matter

arising out of the joint venture. Certainly, as Valentine argued in its brief, the ownership of the spray

dryer should be determined with reference to these agreements. In addition, the notice of arbitration

requests the arbitrators to "determine the amount due and payable to the Plaint iffs ..." This broad

language again seems to request the arbitrators to determine what Valentine owes Donau under the

collection of agreements. Given the presumption of arbitration, we hold that the broad language in

the notice of arbit rat io n sufficiently placed the ownership of the spray dryer before the arbitration

panel.

We sympathize with Valentine, as Donau wrote a broad notice of arbitration that seems to

give the arbitrators jurisdiction over anything under the sun relating to the joint venture agreement.

The parties agreed to arbitration, however, and must accept the lose procedural requirements along

with the benefits which arbitration provides. An arbitrator, in his discretion, may choose not to

address an issue without giving the opposing party bette r notice and an opportunity to respond.

Federal law, however, does not impose any requirements as to how specific a notice of arbitration

must be. In the absence of a congressional mandate, we will not develop a code of pleading here.

Valentine improperly relies upon Delta Queen Steamboat C o. v. District 2 Marine Eng'rs

Beneficial Ass'n, 889 F.2d 599 (5th Cir.1989), cert. denied,

--- U.S.

----, 111 S.Ct. 148, 112 L.Ed.2d

114 (1990). There, we vacated an arbitration award reinstating an employee because the arbitrator

exceeded the express l

imit at io ns of his contractual mandate. In reinstating the employee, the

arbitrator took an action forbidden by the underlying collec t ive bargaining agreement. Here,Valentine can point to no contractual provision that removes the ownership of the spray dryer as an

issue to be decided by an arbitrator.

Our decision in Totem Marine Tug & Barge v. No rth Am. Tow ing, 607 F.2d 649 (5th

Cir.1979), presents a more similar factual scenario. There, we held that the arbitrator exceeded his

power by awarding damages that the plaint iff did not list and admitted were not an issue in the case.

We distinguish Totem Marine as well. There, the plaintiff admitted to the arbitration panel that the

case did not present the issue and, in reliance upon that representation, the defendant failed to put on

any evidence for that issue. Here, Donau submitted damage statements to the arbitrators, alleging

it owned the spray dryer and never made any representations that the issue was not before the panel.

III.

Next, Valentine argues that we should vacate the award because it is based upon a material

mistake of fact. Title 9 U.S.C. § 11(a) allows us to vacate an award "[w]here there was an evident

material miscalculation of figures or an evident mater ial mistake in the description of any person,

thing, or property referred to in the award." The Sixth Circuit has held that "where the record that

was before the arbitrator demonstrates an unambiguous and undisputed mistake of fact and the record

demonstrates strong reliance on that mistake by the arbitrator in making his award, it can fairly be

said that the arbitrator "exceeded [his] powers or so imperfectly executed them' that vacation may

be proper." National Post Office v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir.1985).

We interpret the term "undi sput ed" t o mean we should look to see whether there is any

rational basis for disputing the truth of the fact. S ee Anderman/Smith Co. v. Tennessee Gas Pipeline

Co., 918 F.2d 1215, 1218 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2799, 115 L.Ed.2d

972 (1991) (award must at least be rationally inferable from the agreement). In other words, just

because Donau contends it owns the spray dryer does not make ownership disputed; Donau must

have some rational basis for its argument. Although Valentine has made a strong argument that no

rational finder of fact could determine that Valdon once owned the spray dryer, we need not reach

this issue.

Instead, our decision rests upon the statutory requirement that the mistake be "material," orin the words of the Sixth Circuit, the record must "demonstrate[ ] strong reliance on that mistake"

in making the award. Valentine cannot demonstrate with adequate certaint y t hat the arbitrators

strongly relied upon the punitive fact that Valdon once owned the spray dryer in making its award.

Valentine contends that the arbitrators relied upon the mistake of fact in awarding the lump

sum of $600,000 and the three-cent royalty. Essentially, Valentine contends that the arbitrators

liquidated the joint venture, awarding it the ownership of the machine and giving Donau monetary

compensation. Although Valentine may be entirely correct, it only provides one theory of how the

arbitrators reached their decision. Donau provides alternative explanations for the two awards.

Donau contends the arbitrators may have awarded the lump sum as an award of past damages

based upon post-termination royalties due on the Georgia-Pacific contract. Donau argues the royalty

award was a reasonable royalty for the use of Donau's technology as provided for after termination

of the agreements between the parties. Arbitrators need not provide reasons for their award. E .g.,

Antw ine v. Prudential Bache Sec

., 899 F.2d 410, 412 (5th Cir.1990). If the award is rationally

inferable from the facts before the arbitrator, we must affirm the award. See Anderman/Smith.

Applying Anderman/Smith to the circumstances before us, we conclude that we must affirm

the arbitrators' award if Donau can provide any rational explanation for the award inconsistent with

Valentine's theory that the award had to be based upon Valdon's former ownership of the spray dryer.

Finding Donau's explanations rational, we must affirm the decision of the district court; we cannot

determine with certainty that the arbitrators based the two awards in question upon Valdon's former

ownership of the spray dryer.

IV.

Valentine also argues the arbitrators had no jurisdiction to decide the case, because they did

not take oaths as requi

red by Louisiana law. Further, Valentine charges the award is contrary to

public policy. We need not decide either of these issues, as Valentine waived them by not raising

them in the district court.

Fina lly, in desperation, Valentine argues that the arbitrators' award is ambiguous. We

consid er t his claim to be without merit, as the award is sufficiently pellucid when interpretedrationally.

The judgment is AFFIRMED.