Pursuant to Ind.Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before 

any court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEES:

P. ADAM DAVIS Attorney for Chicago Franchise Systems

Davis & Sarbinoff, LLP EDWARD F. HARNEY, JR.

Indianapolis, Indiana Hume Smith Geddes Green & Simmons, LLP

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

DAVID JESSUP and DIANE JESSUP, )

)

Appellants-Defendants, )

)

vs. ) No. 29A02-1302-PL-160

)

CHICAGO FRANCHISE SYSTEMS, INC. )

and JAG’S DOUGH DÉCOR d/b/a )

NANCY’S PIZZA, )

)

Appellees-Plaintiffs. )

APPEAL FROM THE HAMILTON CIRCUIT COURT

The Honorable Paul A. Felix, Judge

Cause No. 29C01-0904-PL-777

November 26, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
2

David and Diane Jessup appeal a trial court decision declining to modify the award 

they received following arbitration with their franchisor, Chicago Franchise Systems 

(“Chicago”). They raise four issues, which we consolidate1 and restate as whether their 

request for modification was timely; whether they presented adequate grounds to permit 

modification; and whether the trial court properly calculated the damage award. On crossappeal, Chicago asks that it be awarded attorney fees and costs. 

We affirm in part, reverse in part, and remand. 

FACTS AND PROCEDURAL HISTORY

The Jessups sued Chicago alleging, among other things, Chicago allowed a new 

franchisee within the Jessups’ “protected area,” (App. at 35), misrepresented the Jessups’ 

cost of goods, did not pass on to the Jessups certain rebates and incentives to which they 

were entitled, and misappropriated or did not properly use money the Jessups paid for 

advertising. In its counterclaim, Chicago alleged breach of contract on the Jessups’ part in 

the form of failure to pay certain royalty and advertising fees. 

 

1

 The trial court denied as moot the Jessups’ request to vacate the award in favor of Chicago because the 

Jessups “orally [withdrew] their request for vacatur at the September 11, 2012 hearing.” (App. at 9.) In their 

reply brief the Jessups offer a one-paragraph “Clarification as to Waiver of Vacatur Argument,” (Appellants’ 

Reply Br. at 14), in which they assert they asked to vacate only “that portion of the Arbitration Award in which 

Franchisor was awarded the Franchisor award.” (Id.) The Jessups’ counsel did “stipulate that our vacation 

was simply for purposes of vacating that portion of the award to allow for modification.” (App. at 669.) 

Counsel did not specify what “that portion” of the award was, and went on to say “We don’t meet any of the 

grounds under Section 10 [of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 10, which governs vacation of 

an award]. We are sticking with Section 11 [which governs correction and modification of an award].” (Id.) 

Counsel then said “we’re just looking to vacate the entry of your judgment to replace it with no judgment. So 

modify, I don’t care how you say it.” (Id.) 

 In light of counsel’s statement the Jessups did not “meet any of the grounds under Section 10” and wanted to 

vacate the entry of judgment to replace it with “no judgment,” we agree with Chicago that the Jessups have 

waived their vacatur argument for appeal. 
3

Chicago filed a motion to compel arbitration, which the court granted. The arbitrator 

heard evidence and then on May 13, 2011, awarded the Jessups $68,959.19 for damages and 

awarded Chicago $32,478.36 on its counterclaim. It also directed Chicago to pay the Jessups 

$1,262.50 to cover certain costs they incurred. 

On June 6, 2011, the Jessups sent an email to the arbitrator and to Chicago’s counsel 

requesting modification of the award. On June 16, Chicago responded, also by email. The 

arbitrator denied the modification request, stating he had no authority to modify the award, 

and almost a year later, on May 10, 2012, the Jessups filed with the trial court2 a motion to 

“Modify, Confirm and Enforce,” (id. at 21), the arbitration award. After a hearing, the trial 

court denied the Jessups’ request for modification and confirmed the award. 

DISCUSSION AND DECISION

Our review of arbitration awards is very narrow in scope. Fiducial Inv. Advisors v. 

Patton, 900 N.E.2d 53, 60 (Ind. Ct. App. 2009). An award should be set aside only when one 

of the grounds specified by statute for vacation of an award is shown, id., and our role in 

reviewing an arbitration award is limited to determining whether the party challenging the 

award has established any of the grounds for challenge permitted by statute. Id. 

The trial court’s decision declining to vacate an arbitration award is reviewed under 

the same standard as any other trial court decision. Barbera v. AIS Servs., LLC, 897 N.E.2d 

485, 487 (Ind. Ct. App. 2008). Thus, we accept findings of fact that are not clearly erroneous 

and decide questions of law de novo. Id.

 

2

 Neither party directs us to any deadline for the court filing. 
4

1. Timeliness

The Federal Arbitration Act (FAA) providesthat notice of a motion to vacate, modify, 

or correct an award “must be served on the adverse party or his attorney within three months 

after the award is filed or delivered.” 9 U.S.C. § 12 (emphasis added). The trial court found 

the arbitrator’s award was filed May 13, 2011, and the Jessups filed their Motion to Modify 

on May 10, 2012. On that basis it found the Jessup’s motion time-barred, stating “A motion 

to vacate or modify an arbitral ruling must be filed with the court and served on the adverse 

party before the expiration of the three-month period.” (App. at 8a) (emphasis added). 

The court’s ruling was erroneous, as section 12 of the FAA imposes no requirement 

that such a motion be “filed with the court” within the three-month period; it requires within 

that period only service on the adverse party or his attorney. The Seventh Circuit addressed 

that provision in Webster v. A.T. Kearney, Inc., 507 F.3d 568, 572 (7th Cir. 2007), reh’g 

denied: 

[W]e wish to clarify some of our previous statements about the tolling date. 

The parties point out, correctly, that at least two of our past decisions could be 

read to provide some support for Webster’s position that the statute of 

limitations stops upon the filing of a motion to vacate or otherwise alter an 

award. See Olson v. Wexford Clearing Servs. Corp., 397 F.3d 488, 492 (7th 

Cir.2005) (“‘[H]e had to file suit within three months of the April 15 award to 

preserve his arguments about the arbitrator’s alleged misconduct”); 

Papapetropoulous v. Milwaukee Transp. Servs., Inc., 795 F.2d 591, 598 n.8 

(7th Cir. 1986) (stating that motion was time-barred because plaintiff “failed to 

file it within the three month statute of limitation time period contained in 9 

U.S.C. § 12”). 

* * * *

To the extent that our use of the term “filing” in those cases is 

misleading, we clarify now and for purposes of future cases that service of a 

motion to vacate is the act that stops the three-month statute of limitations. 
5

Unless and until Congress amends § 12 and makes filing the critical date, we 

will continue to enforce the plain language of the statute. 

Chicago did not address, or even acknowledge the Webster decision in its appellate 

brief; instead it relied in its timeliness argument on the Olson and Papapetropoulous

decisions that Webster had explicitly disapproved in 2007. We admonish Chicago’s counsel 

to more diligently determine the current status and continued validity of the legal authority on 

which it relies. 

The Jessups assert they satisfied the Section 12 requirement when they sent Chicago’s 

counsel and the arbitrator an email on June 6, 2011, stating they were seeking modification of 

the order and listing their grounds for doing so. Neither party argues the email message 

amounted to inadequate service, and we decline to so hold. As we prefer to decide cases on 

their merits whenever possible,see, e.g., Sekerez v. Gehring, 419 N.E.2d 1004, 1008 (Ind. Ct. 

App. 1981), we will consider the merits of the Jessups’ appeal. 

2. Grounds for Modification3

In addition to their request the award to Chicago be vacated, the Jessups asked the trial 

court to modify the arbitration award “with regard to (1) Damages Relating to Cost of Goods,

 

3 The Jessups argue at length that the arbitrator’s “manifest disregard of law” serves as a basis for the trial 

court’s authority to modify the award. (Appellants’ Br. at 17.) It does not. In Affymax, Inc. v. Ortho-McNeilJanssen Pharm., Inc., 660 F.3d 281, 284 (7th Cir. 2011), the Seventh Circuit said that except for situations 

where an award directs the parties to violate the legal rights of third persons who did not consent to the 

arbitration, “manifest disregard of the law is not a ground on which a court may reject an arbitrator’s award 

under the Federal Arbitration Act.” Addressing section ten of the FAA, which provides a list of reasons an 

award may be vacated, the Affymax court noted “[t]his list is exclusive; neither judges nor contracting parties 

can expand it. Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 584–89, 128 S.Ct. 1396, 170 L.Ed.2d 

254 (2008). Disregard of the law is not on the statutory list.” Decisions to the contrary, it held, did not survive 

Hall. Id. at 285. The Jessups do not address, or acknowledge, Hall or Affymax in their brief or reply brief.
6

(2) Treble Damages . . . and (3) Attorney Fees.” (App. at 22.) After determining the 

Jessups’ motion was not timely, the trial court went on to determine, correctly, that it could 

not modify the award because the Jessups had not provided grounds for modification 

permitted under section eleven of the FAA. 

9 U.S.C. § 11 provides a court may modify an arbitration award:

(a) Where there was an evident material miscalculation of figures or an evident 

material mistake in the description of any person, thing, or property referred to 

in the award.

(b) Where the arbitrators have awarded upon a matter not submitted to them, 

unless it is a matter not affecting the merits of the decision upon the matter 

submitted.

(c) Where the award is imperfect in matter of form not affecting the merits of 

the controversy.

The order may modify and correct the award, so as to effect the intent thereof 

and promote justice between the parties.

Section eleven provides the FAA’s exclusive grounds for expedited modification. 

Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 582-84 (2008). Factual or legal errors 

by arbitrators -- even clear or gross errors -- do not authorize courts to annul awards. Gingiss 

Int’l, Inc. v. Bormet, 58 F.3d 328, 333 (7th Cir. 1995). 

Section eleven 

Substantia[tes] a national policy favoring arbitration with just the limited 

review needed to maintain arbitration’s essential virtue of resolving disputes 

straightaway. Any other reading opens the door to the full-bore legal and 

evidentiary appeals that can “rende[r] informal arbitration merely a prelude to 

a more cumbersome and time-consuming judicial review process,” Kyocera 

[Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 998 (9th Cir. 

2003), cert. dismissed 540 U.S. 1098 (2004)]; cf. Ethyl Corp. v. United 

Steelworkers of America, 768 F.2d 180, 184 (C.A.7 1985) [, cert. denied 475 

U.S. 1010 (1986)], and bring arbitration theory to grief in post-arbitration 

process. 
7

Hall St. Associates, 552 U.S. at 588. 

The Jessups did not establish a basis for modification under section 11. They appear 

to argue on appeal there was there was an “evident material miscalculation of figures,” 9 

U.S.C § 11, with regard to the cost of goods award because the arbitrator’s cost of goods

award was not the same amount reflected by the evidence the Jessups presented. The 

arbitrator found Chicago “consistently misrepresented the cost of goods, vendor contracts, 

and the level of assistance” it would give the Jessups, (App. at 15), and the Jessups suffered 

damages that it found, “after careful calculation,” (id.), amounted to $60,000.00. 

The Jessups note they presented evidence their cost-of-goods-related damages were 

greater than that amount, but they do not direct us to a specific “miscalculation” that was the 

basis for the arbitrator’s award. Once a factual question is determined in arbitration, it is 

finally adjudicated and cannot be relitigated. Bopp v. Brames, 677 N.E.2d 629, 634 (Ind. Ct. 

App. 1997). Arbitrators are not restricted to evidence submitted by the parties but may base 

their decision on their own knowledge and expertise. Id. Because we are not afforded the 

benefit of a record of the arbitration proceedings, we presume the award was justified by the 

evidence. Angell Enters., Inc. v. Abram & Hawkins Excavating Co., Inc., 643 N.E.2d 362, 

365-66 (Ind. Ct. App. 1994). To the extent the determination of the amounts are questions of 

fact, we do not have the prerogative to reconsider those findings. Id. at 366
8

As the Jessups have not demonstrated a “material miscalculation” that led to the 

arbitrator’s award, they did not provide section eleven grounds on which the trial court could 

modify the award.4 

3. Attorney Fees

Chicago argues it is entitled to attorney fees because the franchise agreement provided 

“the prevailing party shall be entitled to and the non-prevailing party shall pay” such fees. 

(App. at 71.) We decline to characterize Chicago as the “prevailing party.” 

Our Indiana Supreme Court addressed the meaning of “prevailing party” in Reuille v. 

E.E. Brandenberger Const., Inc., 888 N.E.2d 770, 771-72 (Ind. 2008): 

As the contract at issue does not define the term “prevailing party,” we 

will turn to sources that reflect the ordinary meaning of the term at the time the 

contract was executed. At the time of contract execution, Black’s Law 

Dictionary defined “prevailing party” as:

The party to a suit who successfully prosecutes the action or 

successfully defends against it, prevailing on the main issue, 

even though not necessarily to the extent of his original 

contention. The one in whose favor the decision or verdict is 

rendered and judgment entered.

Black’s Law Dictionary 1188 (6th ed. 1990). This definition appears to 

contemplate a trial on the merits and entry of a favorable judgment in order to 

obtain prevailing party status.

Several Indiana court decisions issued shortly before the parties 

executed their contract corroborate this approach. See Heritage House of 

Salem, Inc. v. Bailey, 652 N.E.2d 69, 79-80 (Ind. Ct. App. 1995) (plaintiff is 

not a prevailing party where it obtained a preliminary injunction but where 

judgment ultimately was rendered for the defendant)[, reh’g denied, trans. 

denied]; State Wide Aluminum, Inc. v. Postle Distribs., Inc., 626 N.E.2d 511, 

 

4

 While the trial court properly declined to modify the award, we must agree with the Jessups that the trial 

court’s order should have included an additional amount of $1,262.50 payable to the Jessups. The arbitrator’s 

award provided Chicago “shall reimburse [the Jessups] $1,262.50 over and above the net award set forth 

immediately above,” (App. at 16), representing certain expenses the Jessups had incurred. The trial court did 

not modify the award, but its order did not include the additional amount. We accordingly remand so the trial 

court may modify its order to conform to the arbitration award. 
9

516-17 (Ind. Ct. App. 1993) (State Wide is not a prevailing party under § 34-1-

32-1(b) (now § 34-52-1-1) because it did not receive a judgment)[, reh’g 

denied, trans. denied]; State ex rel. Prosser v. Ind. Waste Sys., Inc., 603 

N.E.2d 181, 189 (Ind. Ct. App. 1992) (a favorable ruling on a motion is not a 

judgment allowing the recovery of costs as a prevailing party).

Furthermore, it seems unlikely that parties entering into a contract 

would intend for a settlement reached during mediation to result in either party 

obtaining prevailing party status. One of the purposes of mediation is to 

provide an atmosphere in which neither party feels that he or she has “lost” or 

“won” a case. Mediation is meant to remove some of the contentiousness of 

formal litigation in order to facilitate the negotiation process.

* * * * *

The agreement before us today, of course, is a straightforward and 

unadorned version. Aside from the dictionary and case law on which we rely, it

seems apparent that the bright line approach these represent is the best for most 

litigants. The worst approach would be one in which “prevailing party” is 

treated with ambiguity or discretion, provoking litigation about who won the 

litigation, in addition to litigation over the appropriate amount of fees. 

(Footnote omitted.) 

To find Chicago a “prevailing party” even though the Jessups prevailed at arbitration 

on some issues and were ultimately awarded a greater amount on their claim than Chicago 

was on its, would be to treat the term with the “ambiguity or discretion, provoking litigation 

about who won the litigation, in addition to litigation over the appropriate amount of fees,”

id., against which our Supreme Court cautioned. Nor did Chicago prevail on every issue 

presented in this appeal. We accordingly decline to hold Chicago is entitled to attorney fees 

pursuant to the arbitration agreement. 

CONCLUSION

The trial court properly declined to modify the arbitration award, and Chicago cannot 

be characterized as a “prevailing party” for purposes of recovery of attorney fees. However, 
10

the trial court’s order should have included the additional amount the arbitrator awarded the 

Jessups “over and above the net award.” (App. at 16.) We therefore affirm in part, reverse in 

part, and remand.

Affirmed in part, reversed in part, and remanded. 

BAILEY, J., and BRADFORD, J., concur.