Guillory Real Estate, Inc. v. Ward 296 So. 2d 853

WATSON, Judge.

This is an appeal from a judgment in favor of plaintiff on a petition to homologate and confirm an arbitration award.

We find that the trial court has accurately stated the facts, concisely framed the issues, and correctly decided the questions involved. Therefore, we will quote with approval the opinion of the trial court with certain additional observations concerning the third issue:

“A dispute arose between two members of the Greater Calcasieu Board of Realtors, Inc. over a real estate sales commission. In accordance with the by-laws of the Greater Calcasieu Board of Realtors, Inc., the dispute was submitted to arbitration. An arbitration hearing was held on April 11, 1973, before the Professional Standards Committee of the organization, which rendered an award in favor of the plaintiff in this suit, Guillory Real Estate, Inc., and against the defendants, Lorris M. Ward and Barbara M. Ward, d/b/a Ward Real Estate and Insurance Agency.

“Defendants had been paid the commission of $5,000.00, and the arbitration board *855held that plaintiff herein was entitled to one-half thereof. The decision of the arbitration board not having been complied with, plaintiff filed this suit to homologate the arbitration award and to have the award made the judgment of this court.

“There are no factual disputes. The pertinent facts will be discussed in connection with the discussion of the respective issues.

“Defendants seek to have the arbitration award vacated and set aside under the authority granted to the court to do so by the provisions of R.S. 9:4210D when the arbitrators ‘so imperfectly’ execute their powers that a mutual, final, and definite award upon the subject matter submitted is not made.

“Defendants urge three bases for their contention that the arbitrators executed their powers ‘so imperfectly’ that the award cannot stand. These three grounds are:

1) All of the arbitrators did not sign the award.

2) The chairman of the arbitration committee who administered the oaths to the witnesses, lacked the legal capacity to administer the oaths, and accordingly, the witnesses were not sworn.

3) No oath was administered to the arbitrators to render their award with integrity and impartiality.

FAILURE OF ARBITRATORS TO SIGN AWARD

“A provision of the Louisiana Arbitration Law, R.S. 9:4208, states that ‘the award shall be in writing and shall be signed by the arbitrators or by a majority of them.’ The Board rendered its decision in writing in the form of a letter dated April 20, 1973, addressed to both parties. However, the letter was signed by only one of the three arbitrators, Mike D. Bono, Chairman. A second letter dated May 17, 1973, addressed to both parties, and signed by all three arbitrators, Mike D. Bono, Jules E. Guglielmo, Sr., and Robert F. Pierce, contains in part the following language :

‘This letter is signed by all members of the arbitration board, is a ratification, out of an abundance of caution, of the letter of April 20, 1973, which letter accurately reflects the findings of all of the undersigned board members.’

“Defendants contend that once the arbitrators have rendered their award, their powers as arbitrators cease. Accordingly, they contend that the arbitrators’ powers ceased prior to May 17, 1973, presumably on April 20, 1973, and they were powerless to sign the letter of ratification.

“The court must reject this argument as being without merit. The arbitrators surely retained their authority at least until their decision had been legally and properly rendered. If the decision as announced in the letter of April 20 was imperfectly rendered because of only one of the arbitrators having signed it, it was perfected on May 17, and the arbitrators retained their authority to so perfect the rendition of their award. While it may be that the award was ineffective prior to May 17, it became effective on that date.

“The purpose of the enactment of R.S. 9:4208 has been accomplished.

“INVALIDITY OF THE WITNESSES’ OATHS

“Each of the witnesses was sworn by the committee chairman, Mike D. Bono. Mr. Bono is not a notary public, public office holder, commissioner, or other person specifically authorized by statute to administer oaths. For this reason, defendants attack the validity of the oaths administered by Mr. Bono. They did not do so at the arbitration hearing.

“The Louisiana Arbitration Law encourages the use of arbitration agreements and recognizes their validity.

*856“The by-laws of the Greater Calcasieu Board of Realtors, Inc., contains provisions for the arbitration of disputes between members of the organization. The parties hereto agreed to submit their dispute to arbitration in accordance with the by-laws of the organization.

“Section 7 of Article VII of the bylaws contains the following provision:

‘Witnesses shall be sworn by the chairman.’

“The agreement being valid and the witnesses having been sworn in accordance with the agreement' the witnesses were validly sworn.

“LACK OF ADMINISTRATION OF OATH TO ARBITRATORS

“No oath was administered by a judge or justice of the peace to the arbitrators to render their award with integrity and impartiality.

“Defendants rely upon the provisions of Civil Code Article 3111 which requires the arbitrators to be sworn, and several cases basing their decisions on this Article. However, this codal article was written and these cited cases were decided before the enactment of the Louisiana Arbitration Law by Act 262 of 1.928 and Act 377 of 1948, now appearing as R.S. 9:4201-4217.”

“R.S. 9:4204, which deals with the appointment of arbitrators, makes no requirement that the arbitrators be sworn. It provides ‘If, in the agreement, provision is made for a method of naming or appointing an arbitrator or arbitrators or an umpire, this method shall be followed . .’

“Article 7 of the by-laws of the Greater Calcasieu Board of Realtors, Inc. provides for the appointment by the president, subject to confirmation by the board of directors, of a Professional Standards Committee, consisting of three persons, with authority to act as an arbitration board to hear and decide business disputes between members. Bono, Guglielmo, and Pierce are the three members of the Professional Standards Committee. They having been appointed arbitrators in the method provided for .in the agreement, and the agreement being valid under the provisions of R.S. 9:4201, they were legally appointed as arbitrators, with nothing further being legally required of them to act, including the taking of an oath.

“Since the adoption of the Louisiana Arbitration Law, compliance with its provisions is sufficient, notwithstanding the provisions of previously adopted Civil Code articles relating to the same subject matter.”

The Civil Code Article which defendants contend require the arbitrators to take an oath reads as follows:

“Art. 3111. Before examining the difference to them submitted, the arbitrators ought to take an oath before a judge or justice of the peace, to render their award with integrity and impartiality in the cause which is laid before them.”

It is significant, in our opinion that the article uses the permissive word “ought” rather than the mandatory word “shall”. The jurisprudence, in certain early cases has interpreted this article to be mandatory. See, for example, Overton v. Alpha, 13 La.Ann. 558 (1858); King v. King, 104 La. 420, 29 So. 205 (1901). One very early case, Talcott v. McKibben, 2 Mart. (O. S.) 298 (1812), seems to hold the contrary, that is, that the taking of an oath by the arbitrators is not sacramental, although we must recognize that this case has been questioned in later decisions. E. V. Benjamin Co. v. Royal Mfg. Co., 172 La. 965, 136 So. 19 (1931).

However, we agree with the analysis by the trial court which holds that LSA-R.S. 9:4204, enacted as part of Act 377 of 1948 had the effect of modifying, but not repealing, the provisions of the Civil Code. We think counsel for defend*857ants is incorrect in his argument that the trial court held that the statutes enacted in 1948 repealed the articles of the Civil Code. We agree further with the trial court that the arbitrators in this case were legally appointed under the provisions of the statute with nothing further being required of them to act, including no necessity for taking an oath. In addition to this reasoning, we would observe that the clear wording of the Civil Code Article, which defendants contend requires an oath, levels only a requirement permissive, and not mandatory, in nature. We think that the clear language of the article would prevail regardless of the later jurisprudence.

For the reasons stated above, we are of the opinion that the judgment of the trial court is correct and that it should be affirmed.

Costs of the appeal are taxed against appellants.

Affirmed.

DOMENGEAUX, J., dissents and assigns written reasons.

DOMENGEAUX, Judge

(dissenting).

This appeal concerns itself with the subject of arbitration. Plaintiff-appellee, Guillory Real Estate, Inc. and defendants-appellants, Lorris M. Ward and Barbara R. Ward d/b/a Ward Real Estate, are realtors and members of the Greater Cal-casieu Board of Realtors. The by-laws of the latter Board provide that disputes between members which are within the ambit of their business dealings must be submitted to arbitration. The by-laws further provide for a Professional Standards Committee, composed of three members having designated powers and duties. One of its functions is to sit as an arbitration board to hear and determine such matters in dispute. The chairman of the committee, under the by-laws, must swear in all witnesses appearing at such an arbitration hearing.

Defendants herein had an exclusive listing on certain property in Calcasieu Parish, which was ultimately sold. Plaintiff, claiming that it had shown the property to the purchaser, through one of its agents, and that it was responsible for the ultimate sale, demanded one-half of the commission which defendants received as a result of the sale. Defendants denied owing anything to plaintiff, and after some time, and in keeping with the by-laws of the Board to which they both belonged, arbitration was agreed upon between the disputing realtors.

The arbitration hearing was held on April 11, 1973, before the Professional Standards Committee composed of Mike D. Bono — Ad Hoc Chairman, Jules E. Gug-lielmo, Sr. and Robert F. Pierce. The arbitrators were not sworn in, but the witnesses who testified at the hearing were administered an oath by the Chairman, Mr. Bono, presumably by virtue of the authority granted in the Board’s by-laws. Mr. Bono however was neither Judge, Justice of the Peace, Notary, or any other type officer legally empowered to administer oaths. By letter dated April 20, 1973, the parties were informed that the arbitrators had found in favor of plaintiff and awarded it one-half of the sales commission which defendants had received. The letter was signed by Mike D. Bono, as Chairman. Subséquently, the parties received a second letter, dated May 17, 1973, signed by all three arbitrators who had heard the complaint, and which purported to ratify the initial letter of April 20, 1973, “out of an abundance of caution”, in that the said letter had only been signed by the Chairman. Thereafter plaintiff successfully had its award homologated in the District Court.

In asking that we reverse the judgment of the District Court, defendants-appellants cite four assignments of error on the part of the trial judge:

1. In holding that the Louisiana Arbitration Law, LSA R.S. 9:4201 et seq. repeals all provisions of the Revised Civil Code on the subject of arbitration.

*8582. In holding that the failure of the arbitrators to sign the award (citing LSA R.S. 9:4208) did not affect the validity of the award, and that arbitrators may cure this defect at any later time by saying that they then agree with the award.

3. In failing to hold that the oath administered to witnesses at the arbitration hearing was invalid, and thus, the award was rendered upon unsworn testimony.

4. In holding that the failure of the arbitrators to be sworn did not subject the award to attack for invalidity.

In disagreeing with my esteemed brothers of the majority, I would reverse and vacate the award and remand this matter for a rehearing by the arbitrators. I conclude that assignments of error One and Four are well taken.

The majority opinion concludes that the trial court did not hold that the Title 9 Louisiana Arbitration Law repealed the Civil Code Articles on Arbitration. In that connection, the trial judge said:

“Since the adoption of the Louisiana Arbitration Law, compliance with its provisions is sufficient, notwithstanding the provisions of previously adopted Civil Code articles relating to the same subject matter.”

That statement is clear. Although the word “repeal” is not used, it has the effect of disregarding.the Civil Code Articles on Arbitration, which for the reasons hereafter shown, I suggest is incorrect.

The fundamental law of Louisiana relative to arbitration hearings and award is contained in Articles 3099 to 3132 of our Civil Code. These Code articles are further supplemented by LSA R.S. 9:4201 through 9:4217.1 The latter statutes are only a portion of the whole of Revised Statutes Title 9 which are known as the Civil Code Ancilliaries, and are auxilliary to the Civil Code. It is evident that the legislature by enacting into law the Title 9 Ancilliaries did not intend to repeal all comparative provisions of the Civil Code. Where the specific provisions of a Civil Code Article conflict with a later expression of the legislature, as may be the case in some of the Title 9 Ancilliaries, then we are bound to construe the latter enactment as a repeal sub silentio of the earlier codal article. However, where the latest expression of the legislature in a given area does not either specifically repeal or directly conflict with an earlier enactment in the same area, then we are bound to give effect to the earlier enactment, construing it in pari materia with the latest expression in that area of the law. In that connection, I take note of the comments of Mrs. Harriet S. Daggett, the reporter who drafted the project for Title 9, Civil Code Ancilliaries, to the effect that in dealing with Article 9 material, as in dealing with our Civil Code, it is necessary to be aware of Article 17 of the Revised Civil Code of 1870 which reads:

“Art. 17. Laws in pari materia, or upon the same subject matter, must be construed with a reference to each other; what is clear in one statute may be called in aid to explain what is doubtful in another.”

In the above context, under Civil Code Article 3111 as interpreted by the jurisprudence, arbitrators are required to take an oath before a Judge or Justice of the Peace before hearing the matter submitted for arbitration, and in the absence of being sworn, any arbitration award made is invalid. King v. King, 104 La. 420, 29 So. 205 (1901); E. V. Benjamin Co. v. Royal Mfg. Co., 172 La. 965, 136 So. 19 (1931); Overton v. Alpha, 13 La.Ann. 557 (1858). I find nothing in LSA R.S. 9:4201-9:4217 which is in conflict with the Civil Code requirement that the arbitrators be sworn, nor which repeals said requirement, or in *859any way directly or indirectly suggests that the arbitrator’s oath is no longer needed to lend validity to any pronouncement which is ultimately made. Inasmuch as the arbitrators did not take the required oath before proceeding to hear this arbitration dispute, the award which is the subject of this appeal is invalid.

Although I feel the requirement of the arbitrator’s oath may be waived under certain circumstances, such as by agreement between the parties, I cannot say that there was such a waiver under the facts of this dispute. I deem it reasonable that parties appearing before an arbitration board under circumstances such as we have in this case, have a right to presume that the arbitrators are legally constituted to act as such. We should not presume that the litigants would have waived the arbitrator’s oath requirement had they known or should have known otherwise.

Although not necessary for the disposition of this case, I deem it appropriate to touch upon appellants’ third assignment of error having to do with the alleged invalidity of the oaths administered to the various witnesses by the Chairman, Mr. Bono. I find no provision in either C.C. Articles 3099-3132 or R.S. 9:4201-4217 making it mandatory that witnesses testifying at an arbitration hearing be sworn. C.C. Art. 3115 specifically states that arbitrators have no authority to compel witnesses to appear before them or to administer an oath. I do not interpret the latter prohibition however to prevent an arbitrator from administering an oath to a witness if said arbitrator is otherwise qualified to administer oaths by being a Notary Public or other official possessing oath-giving authority. C.C. 3115 does contemplate that witnesses shall be sworn by a Justice of the Peace but only if required by the arbitrators.

As aforementioned, the by-laws of the Greater Calcasieu Board of Realtors have a mandatory arbitration set up for its disputing members and provide that the Chairman of the Professional Standards Committee must swear in all witnesses who appear to testify at an arbitration hearing. It is elementary of course that the authority to administer an oath is granted only by law, State or Federal, as in the cases of Judges, Justices of the Peace, Clerks of Court, Notaries, etc. I opine that the Greater Calcasieu Board of Realtors through its by-laws or other rules may provide that witnesses must be sworn in at its arbitration hearing, but is has no authority to cause an oath to be administered by one who is not otherwise legally commissioned for that purpose. In this case, Mr. Bono was not otherwise commissioned. He had no authority to administer the oaths to the witnesses who testified at the hearing of which he was chairman. Although under certain circumstances the failure to swear in witnesses at an arbitration hearing may be waived tacitly or expressly by the parties2 do not find that the parties waived their right to having oaths administered by one properly empowered to do so.

I respectfully suggest that the majority opinion oversimplifies the matter before us and completely ignores the procedural legislative mandates on the subject of arbitration.

For the above and foregoing reasons I would vacate the award of the arbitrators as homologated by the District Court, and, under the authority of LSA R.S. 4210(D), remand this matter to the Professional Standards Committee of the Greater Cal-casieu Board of Realtors for a rehearing by the abritrators not inconsistent with the views expressed herein.

I respectfully dissent.