# FILED

Novemb er 14, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTION AT JACKSON

WILLIAM JEFF BOYLE, ) ) Plaintiff/Appellee, ) Shelby Circuit No. 58552 T.D. ) vs. ) ) VIRGINIA THOMAS, ) Appeal No. 02A01-9601-CV-00022 ) Defend ants/Appe

llant. )

APPEAL FROM THE CI RCUIT COURT OF SHEL BY COUNTY AT MEMPHIS, TENNESSEE

THE HONORABLE ROB ERT A. LANI ER, JUDGE For the Plaintiff/Appellee : For the Defendants/Appellant s Robert A. McLean Kenneth R. Shuttleworth Thomas J. Walsh, Jr. Arc hi e Sa nde rs, III Memphis, Tennessee Memphis, Tennessee

REVERSED A ND REMAN DED

HOL LY KI RBY LI LL ARD , J.

CONCUR:
W. FRANK CR

AWFORD, P. J., W.S.
DAV ID R. F ARM ER, J.OPINION

This is a dog bite case that was heard by an arbitra tor. The trial court vacated the arbitration award on the basis that

the arbitrator misapplied the law. Based on Arnold v. Morgan Keegan & Co. , 914 S.W.2d 445 (Tenn. 1996), we reverse. Appellee Wi lliam Je ff Boyle ( “Boyle” ) worke d at The Bu tcher Sho p restau rant on Sou

th Front Street in Memphis, Tennessee. At 2:00 a.m. o ne mornin g, he lef t the rest aurant, got in his car, and started driving home, when he realized that he had left an item at

work. He parked a few spac es away from

the entrance to restaurant, got out, and jogged towards the door. A t this time, Appellant Virginia Thomas (“Thomas”) was standing with her dog between a car and the curb near

Boyle. The dog was on a leash. As Boyle jogged toward the re stauran t door, Th omas’ dog

jumped on h

im. Boyleasserts t

hat the do g bit

his left arm. Thomas stated that, at most, the dog scratched Boyle’s

arm. Thomas pulled the dog off Boyle. Before the dog jumped on him, Boyle saw neither Thomas nor the dog, since his attention was focused on the door to the shop. Thomas gave Boyle fifty dollars at the scene to help pay for his ripped shi rt. Thom as claimed that Boyle never complained at the scene about an injury, only about his shirt. Boyle stated that he then w as trea

ted at a h ospital em

ergenc y room. He asserted that a scar developed w here the dog bit him. He had plastic su rgery to reduce the scar , and Boyle

stated tha t he has been told

he will needfurther

surgery on the sca

r. He as serted th at he misse d at leas t a week and a ha lf of work as a result of the incident. Boyleclaimed that he talked to Thomas several days after the incident, and she “told him the dog frequently jumped upon people, pawing them and bruising them.” Thomas de nied telli ng Boyle or anyone else that her dog has ever jumped on or a ttacked anyone. Boylefiled suit

against T homas, and the parties agreed to arbitration of the dispute. After

a he aring, the arbitrator determined that the dog was not running at large and that, cons equently , Thomas was not liable

under Te nnessee Code Anno tated § 44 -8-408 or City of Memphis Ordinance § 5-60. Te

nnessee Code Anno tated § 44 -8-408 pr ovides, in pertine nt part: It is unlawful for any person to allow a dog belonging to or under the control of such person, or that may be habitually found on premises occupied by the per son, or2

immediatel y under the control of such person, to go upon the premises of another , or upon a highway or upon a public road or street . . . . Tenn. Cod

e Ann. § 44 -8-408 ( 1993). City of Memphi s Ordinan

ce § 5-60 provides : Dog owners s hall, at all

times, kee

p their a nimals on a

leash or other suitable restraint or confined by a fence on their property or the private property of another, withthe permission of the owner of that prop erty so as to prevent the animal from being at large, biting or harassing any person engaged in a lawful act, inte rfering with th e use of public property or with the use of another person’s pr ivate prop erty, o r being in violation of

any other section o f this Code . No anima l shall be allowed to run at large even on the property of the owner of such a nimal, unless confined by a fence o r other s uitable r

estraint
. City of Memphis Ordinance § 5-60. The arbitrator also concluded that Thomas was not liable under the c om mon law because Boyle had failed to carry his burde n of proof that Thomas “knew, or by exerci se of reas onable c are should have kn own, that h erdog had either vicious or mischievous propensities and was likely to c ause har m to third pa

rties.” T herefo re, the a rbitr ator r uled in Thomas’ favor. Thomas moved the trial court to confirm the arbitrator’s decision, and Boyle moved the court to vacate the decision. After reviewing the record, the trial court found:

1) that Ordinance 5-60 of the City of Memphis requires that “dog owners shall at all times keep their animals on a leash . . . so as to prevent the animal from biting or harassing any person engaged in a lawful act, . . . .” ; 2) that the language of the ordinance is clear on its face; 3) that the record reflects and the par ties do not dispute that the plaintiff was bitten by defendant’s dog; 4) that the record shows that plaintiff was engaged in a lawful a ct at the t ime

- “jogging slightly along the sidewalk” and that there was n o evidence plaintiff’s conduct was unlawful or a proximate cause of the dog bite; 5) that defendant did not prevent her dog, which was on a lea sh, from biting plaintiff; and 6) that un der the O

rdinanc e as appl

ied to the facts, this conduct constitutes negligence per se un d er the law of Tennessee, contrar y to the holding of the arbitrator. THEREFORE, the Court further finds that the arbitrator exceeded his power under T.C.A. § 29-5-313(a) and that plaintiff’s motion is well taken and that the matter should be remanded for a rehearing be fore new arbitrators as provid ed for in T.C.A. § 29-5-313(c) to follow the law of Tennessee a s found by the Court herein. The trial cou

rt vaca ted the a rbitrato r’s dec isio n and rema

nded for further arbitra tion. From th

is decision Thomas now appeals. See Tenn. Code Ann. § 29-5-319(a)(3) (Supp. 1997).3

On appeal, Thomas asserts that the trial court er r ed in denying her motion to confirm the arbitrator’s decision and in vacating that decision. She claim s that the tr ial cour t erred by imprope

rly vacating the arbitrator’ s decisio n becau se it disag reed wit h the arbitrator’s legal conclusions. In the alternative, Thomas argues that the arbitrator cor rectly interpreted the controlling law. Tennessee Code Annotated § 29-5-313 addresses the circumstance s under which a trial court may vacate an arbitrator’s decision: (a) Upon application of a party, the court shall vac ate an award where: (1) The a ward wa s procur

ed by cor ruption, f raud or o ther undu e means; (2) There was evident partiality by an arbitrator appoin ted as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party; (3) The a rbitrato rs exce eded the

ir power s; (4) The arbitrators refused to postpone the hearing upon sufficie

nt cause being shown therefor or refused to hear e vidence material to the contro versy or otherwis e so conducted the hearing, contrary to the provisions of § 29-5-30 6, as to prejudice substantially the rights of a party; or (5) T her e was no a

rbitrati on agree

ment and t

he issue w as not adv ersely determinedin proce edings und er § 29-5 -303 and

the part y didnot participate in the arbitration hearing without raising the objection. The fact that the relief was such that it could not or would not be granted by a

court of law or equity is not ground for vacating or refusing to confirm the a ward. Tenn. Code Ann. § 29-5-313(a) (Supp. 1997). In Arnold v. Morgan Keegan & Co. , 914 S.W.2 d 445 (Te nn. 1996) , the Ten

nessee Su preme Courtdiscussed the standard of review to be applied by a trial c ourt in conside ring an a rbit ration decision. The Court noted that “[t]he standard to be applied by the trial court is a narrow one” and that “courts should play only a limited r ole in reviewing the decisions of arbitrators.” Id. at 448. Noting that a trial court cannot vacate an arbitrator’s decision “be cause it disagrees with theresult,” the Court recognized that a trial court is severely limited in its aut hority when considering issues decided in arbitration. Id. The Court observed that a trial court does not conduct a de novo hearing when reviewi ng an arb itration d ecision; r ather, ithears evidence and enters fa ctual findings and legal conclusions based on the issues raised in the application to vacate the awa rd. Id. (citations omitted). The Court concluded:

Courts, thus, do no t sit to hear claims of factual or legal error by an arbitrator as an appe llate

court doe s in reviewing dec isions of lo wer cou rts. If the courts were free to interve

ne on thes e ground s, the spe edy reso lution of g rievanc es by priv ate mechani sms would be g

reatly undermine d. As long a s the arb it rato r is, arguably,4

construing or applyi ng the con tract and acting w ithinthe scope of his authority, the fact that a court is convinced

he committed serious error does not suffice to overturn his decision. Id. at 449. In this case, the trial court’s order vacating the arbitration award states that the trial court found “that the

arbitra tor exce eded his p ower.” This is one of the enumerated bases for vacating an award under Tennessee Code Annotated § 29-5-313 (a)(3) . “Arbitr ators ‘e xceed th eir powe rs’ when they go beyond the scope of authority granted by the arbitration agreement.” Arnold , 914 S.W.2d at 450. See InternationalTalent Group, Inc. v. Copyright Management, Inc. , 769 S.W.2d 217, 218, 220 (Tenn. App. 1988) (arbitration award vac ated because arbitrators exce eded their po wers where award “did not draw its essence from the Agr eement of the parties”; an arbitrator’s scope of authority “is determined by the terms of the agreemen t betw een the parties which includes the agreement

of the parties to arbitra

te the d ispute”). In Arnold , the appellant sought to vacate the arbitrat ion awa rd, asserting that the arbitration panel exceede d its powers by rendering a decision that was “completely irrational and totally contrary to the undisputed and agreed evidence and the law ack nowledge d to be applicable.” Arnold , 914 S.W.2d at 450. The Tennessee Supreme Court affirmed the trial court’s conclusion that the appellant’s position was that the arbitration panel “made

a mistake of law or fact” in its decision. The Court found tha

t the award did not suggest that the arbitration panel went

outside the arbitration agreement or failed to apply Tennessee law. Therefore, the trial court’s confirmation of the arbitration award w as affirmed. Id. In the arbitrator’s decision in this case, the arbitrator discusses Te nnessee law at length, explaining his interpretation of the applicable statutes and case law. In its reviewof the arbitrator’s decision, the trial court indicates strong disagreement with the arbitrator’s interpr eta tion of Tennessee law, stating tha t the lang uage of C ity of Memphis Ordinance 5-60 “is clear on its face ” and:

. . . that under the Ordinance as applied to the facts, [Thomas’] c onduct constitutes negligence per se under th e law of Tennessee, contrary to the holding of the arbitrator. From this, the trial court concludes that the arbitrator exceeded his powers. It is appa rent that the basis for the tr

ial cour t’s decis ion to vacate the arbitration award was its strong disagreement with the arbitrator on the correct interpreta tion of the applicable law.5

As stated in Arnold , a mistake of law by the arbitrator do es not mea n that he e

xceede d his powers and cannot be the basis for vacating the awa rd. See Arnold , 914 S.W.2d at 451. Even if the trial court is “convinced he committed serious error [ this] does not suffice to overturn his decision.” Id. at 449. Therefore, the trial court’s dec ision to vacate the arbitration award must be reverse d. The is sue of w hether t

he arbit rator c orrect

ly interpr eted the applica ble Tenn essee la

w is pretermitted by this holding. The decision

of the tri al court

is reversed, and the arbitrator’s aw ardis confir med. This c ase is remanded for any necessary f urther proceedings con sis tent with this Opinion. Costs on appeal are taxed to Appellee, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRAN K CRAWF ORD, P. J., W.S.

DAVID R. FARMER, J.