MURDOCK, Justice.
Lexington Insurance Company and Chartis, Inc. (hereinafter referred to collectively as "Lexington"), appeal from an order of the Winston Circuit Court appointing a third arbitrator to the arbitration panel established to settle a dispute between Lexington and Southern Energy Homes, Inc. ("SEH").
SEH designs and builds manufactured homes in Winston County. From January 1, 2002, through October 31, 2004, SEH purchased from Lexington three commercial general-liability ("CGL") policies. An endorsement to a CGL policy insuring SEH from January 1, 2002, through December 31, 2002 ("the 2002 policy"), provides that SEH is responsible for a $100,000 self-insurance retention ("SIR") "per occurrence." Endorsements to two successive CGL policies that together provided coverage to SEH through October 31, 2004, provide that SEH is responsible for a $250,000 SIR per occurrence. The SIR applies both to costs of defense incurred by SEH and to amounts SEH pays in settlement or pursuant to a judgment.
The 2002 policy contains the following arbitration clause:
(Emphasis added.) The SIR endorsement to the 2002 policy contains an arbitration clause that reads exactly the same as the
CGL policies insuring SEH from January 1, 2003, through October 31, 2003 ("the 2003 policy"), and from November 1, 2003, through October 31, 2004 ("the 2004 policy"), each contain an arbitration clause identical to the arbitration clause contained in the body of the 2002 policy. The SIR endorsements to the 2003 policy and the 2004 policy do not contain arbitration clauses.
From January 1, 2002, through October 31, 2004, SEH was named as a defendant in 46 lawsuits alleging property damage and personal injury resulting from SEH's using a vinyl-on-gypsum product in the homes it manufactured ("the VOG litigation"). SEH gave notice of these lawsuits to Lexington. Further, on October 2, 2009, SEH gave written notice to Lexington that SEH had exhausted its SIR amounts in the VOG litigation and was entitled to reimbursement of $1,039,859.74 from Lexington. More than 120 days passed without SEH receiving a decision from Lexington as to whether it agreed with SEH's claim for this amount. On February 4, 2010, SEH made an arbitration demand pursuant to the arbitration clauses of the CGL policies, including the SIR endorsement to the 2002 policy.
In the arbitration demand, SEH also identified its non-impartial arbitrator in accordance with the procedure provided in the arbitration clauses: G. Thomas Sullivan, a Birmingham attorney. On March 4, 2010, Lexington identified its non-impartial arbitrator: Robert H. Gaynor, a Boston attorney. Pursuant to the arbitration clauses, the non-impartial arbitrators were to select a third, impartial arbitrator called the "umpire." That selection did not occur, and the trial court issued an order appointing the umpire. That order is the subject of this appeal.
As noted above, the arbitration clauses provide that the two non-impartial arbitrators "shall within 30 days of the appointment of the second Arbitrator, select an umpire." On April 1, 2010, Sullivan wrote a letter to Gaynor that included required disclosures and stated as follows:
On April 2, 2010, Gaynor left a voice mail for Sullivan stating that he soon would be forwarding his list of three nominees to serve as umpire, along with his required disclosures, and advising Sullivan that he understood from the arbitration clauses in the CGL policies that the venue
Three days later, on April 8, 2010, Sullivan sent a letter to the parties' counsel and to Gaynor that provided, in pertinent part:
Later on the same day, April 8, SEH initiated a declaratory-judgment action in the Winston Circuit Court by filing a complaint seeking (1) a declaration that the venue of the arbitration proceeding should be based upon the absence of a forum-selection provision in the arbitration clause of the SIR endorsement to the 2002 policy; (2) a determination that Lexington had "forfeited its right to designate three nominees to serve as umpire because it failed to timely do so as required by the arbitration agreement"; and (3) the appointment by the trial court of an umpire pursuant to 9 U.S.C. § 5 of the Federal Arbitration Act ("the FAA"). It is undisputed that SEH did not initiate service of the complaint upon Lexington at the time it was filed.
On April 9, 2010, unaware of the pending declaratory-judgment action, Gaynor sent Sullivan a letter reiterating his view that the venue for the arbitration proceedings was Boston and expressing the concern that, "without addressing the locus of the arbitration, the appointment process for an umpire is premature." Nonetheless, Gaynor provided in the letter the names of his three nominees to serve as umpire in the arbitration proceedings. Gaynor also addressed the issue of a "lapse" mentioned by Sullivan in his April 8, 2010, letter:
On April 12, 2010, after having received Gaynor's April 9 letter, SEH filed a "Motion for Expedited Hearing under Ala. R.
On April 13, the trial court set a hearing date of April 16 for SEH's motion for an expedited hearing and the appointment of a third arbitrator. On April 15, 2010, Lexington filed a special appearance for the purpose of alleging insufficiency of process, insufficiency of service of process, and lack of due process.
At the hearing on April 16, 2010, the trial court offered to settle the parties' dispute about naming an umpire, but each party declined to name the nominee from the other party's list from which the name of the umpire would be drawn. Specifically, Lexington's counsel stated that he did not have authority from Lexington to proceed at that time, and SEH openly questioned the impartiality of one of Lexington's nominees for umpire and stated that it needed more time to investigate the backgrounds of Lexington's other nominees. The trial court orally declined to rule upon SEH's motion and ordered SEH to serve its complaint on Lexington.
On June 28, 2010, SEH filed a brief in support of its motion and a response to Lexington's motion to dismiss. In its brief, SEH contended that two of Lexington's nominees for umpire should not be allowed to serve in that role because, SEH contended, they were biased. SEH argued that by failing to submit impartial nominees in a timely fashion Lexington had caused a "breakdown in the arbitrator selection process" that required the trial court to resolve the "impasse" by appointing the umpire to the arbitration panel. For much of its argument, SEH relied upon a written, but unsworn, "declaration" from a professor of business law and dispute resolution at Indiana University, Stephen L. Hayford. On August 7, 2010, Lexington filed a motion to strike Hayford's "declaration." On August 9, 2010, SEH filed its response to Lexington's motion to strike.
The trial court subsequently held a hearing on all pending motions and thereafter entered an order providing, in pertinent part:
Following receipt of this order, Lexington filed a petition for a writ of mandamus in this Court and a motion to stay proceedings
We also granted Lexington's motion to stay proceedings in the trial court pending disposition of the appeal.
Although acknowledging this Court's order providing that Lexington's petition for the writ of mandamus would be treated as an appeal, SEH asks this Court to revisit the question whether Lexington has properly invoked our jurisdiction. SEH maintains that the interlocutory order of the trial court appointing an umpire is not appealable under the FAA or under Rule 4(a)(1) or 4(d), Ala. R.App. P. Specifically regarding Rule 4, SEH contends that the order appealed from does not fall within any of the categories of orders listed in Rule 4(a)(1) and that it is not an order granting or denying a motion to compel arbitration as contemplated by Rule 4(d).
In Okay v. Murray, 51 So.3d 285 (Ala. 2010), we considered an appeal from a similar order. Specifically, as we do in the present case, we considered in that case an order of a trial court "compelling [one party] to arbitrate [its] dispute with [the other party] before an arbitrator appointed by the trial court, in contravention, [the first party] says, of the manner agreed to by the parties for selecting an arbitrator." 51 So.3d at 288. Consistent with the treatment in Okay of the trial court's order as an appealable order and with our previously issued order in this case, we treat the trial court's order here as appealable and apply a de novo standard of review.
The trial court based its authority to appoint the umpire for the arbitration proceedings between Lexington and SEH upon § 5 of the FAA, which provides:
9 U.S.C. § 5 (emphasis added).
The first observation to be made regarding § 5 — and one that ultimately is dispositive of the issues presented in this case — is the following: Although § 5 provides for the contingency of judicial intervention in the event of a "lapse in the naming of an arbitrator," it does so only in the context of a "mandate[] that the method set forth in the arbitration agreement
Bowater Inc. v. Zager, 901 So.2d 658, 668 (Ala.2004) (emphasis added). This Court recently reversed a trial court's order "appoint[ing] an arbitrator to preside over the proceedings resolving a dispute" because the arbitrator was appointed "in contravention of the method for selecting that arbitrator agreed to by the parties." Okay, 51 So.3d at 291.
Consistent with the foregoing observation, Lexington argues that the arbitration clauses in the CGL policies and the SIR endorsement prescribe certain procedures for the selection of arbitrators, that it acted in compliance with those procedures, and, accordingly, that the trial court had no basis under § 5 of the FAA for intervening in the selection process.
SEH responds by arguing that the trial court correctly concluded that Lexington, or Gaynor on its behalf,
SEH's first argument bears some similarity to the argument offered by the petitioners in Ex parte Cappaert Manufactured Homes, supra. Instead of a delay in the appointment process, the petitioners in Cappaert contended that there was an "impasse" in the selection of an arbitrator based on asserted inability of the parties to reach agreement on an arbitrator as required by their contract. The petitioners argued that this purported impasse
822 So.2d at 387.
Similar to the situation in Cappaert, at the time SEH filed its declaratory-judgment action seeking appointment of the third arbitrator by the trial court, the parties were in the midst of nominating their candidates for this post. Correspondence reveals that Sullivan had provided his list of nominees to Gaynor only three days earlier and that Gaynor provided his list of nominees to Sullivan just four days later (i.e., four days after Sullivan had done so and the day after the action was filed in the trial court and before Gaynor or Lexington was aware of that action). The only steps remaining in the process described in the arbitration clauses were the selection by Sullivan and Gaynor of one nominee from the other arbitrator's nomination list and the drawing of one of the two resulting names to serve as the umpire. Perhaps more important than the temporal relationship of these events to the filing of the complaint itself, however, is the fact, as discussed below, that, at most, they were unfolding only a few days outside the allegedly applicable 30-day time frame.
SEH argues that Gaynor's failure to provide his list of nominees within 30 days of Gaynor's appointment by Lexington created a "lapse in the naming of an umpire" that empowered the trial court to make the appointment under § 5. Assessment of this argument requires that we first examine the contractual language used by the parties to describe the process for appointing a third arbitrator. As noted, that language is as follows:
(Emphasis added.)
Both parties contend that this language is plain and unambiguous, but, predictably, each contends that it plainly and unambiguously means something different than the other party asserts. SEH contends that this language means the entire process of selecting the third arbitrator is to be accomplished within 30 days from the selection of the second arbitrator. It contends that the last two sentences are meant simply to describe the process the first two arbitrators are to use in order to accomplish this task if they are unable to accomplish it by mutual agreement. In contrast, Lexington contends that the last two sentences describe the next phase in the process in the event there has not been a selection of an umpire by mutual agreement within the designated 30-day period.
For purposes of deciding this particular case, we need not decide which interpretation of this language is correct or whether that interpretation is or is not a function of plain and unambiguous contractual language. Even if SEH's interpretation is correct, Lexington would be due to prevail in light of the minimal nature of any delay on its part in nominating candidates to serve as umpire.
This Court has quoted with approval the decision of the United States Court of Appeals for the Fifth Circuit in Brook v. Peak International, Ltd., 294 F.3d 668, 672-73 (5th Cir.2002).
Bowater Inc., 901 So.2d at 668 (quoting Brook v. Peak Int'l, Ltd., 294 F.3d at 673, quoting in turn R.J. O'Brien & Assocs., Inc. v. Pipkin, 64 F.3d 257, 263 (7th Cir. 1995)). Consistent with the decision of the Fifth Circuit Court of Appeals in Brook, we are clear to the conclusion that Lexington's alleged delay under SEH's interpretation of the contract was minimal under the circumstances and did not warrant judicial intervention that preempted the umpire-selection process agreed to by the parties.
Our conclusion that SEH was not justified in so quickly seeking judicial intervention based on a strict interpretation of the applicable 30-day provision is bolstered in this particular case by (though not dependent upon) the fact that, if Lexington was tardy in nominating its three candidates for umpire, so apparently was SEH. Lexington appointed Gaynor on March 4, 2010. For all that appears from the terms of the parties' contract, the prescribed 30-day period therefore ended on April 3, 2010. Sullivan submitted his list of umpire nominees on behalf of SEH on April 5 — 2 days after that 30-day mark. Gaynor submitted his list of umpire nominees 4 days later — on April 9 — or 6 days after the deadline.
Joseph v. MTS Inv. Corp., 964 So.2d 642, 648-49 (Ala.2006) (quoting Moore v. Lovelace, 413 So.2d 1100, 1102 (Ala.1982)). No language in the arbitration clauses provides a manifestation of intent to make time of the essence.
SEH contends that the mere existence of a 30-day deadline for the appointment of an umpire demonstrates that time was of the essence in the arbitration clauses. This argument is contradicted, however, by the decision in Compania Portorafti Commerciale, S.A. v. Kaiser Int'l Corp., 616 F.Supp. 236 (S.D.N.Y.1985) — the very case SEH cites for support of the proposition that "a party loses its right of appointment under an arbitration agreement, even where the delay is minimal, where time is of the essence." In Compania, the court explained:
616 F.Supp. at 238 (emphasis added).
In several of the above-cited cases, a delay of only a few days in the appointment of an arbitrator was not sufficient to warrant a conclusion that there had been a lapse in the selection process that justified a judicial appointment. See also, e.g., Global Reinsurance Corp.-U.S. Branch v. Certain Underwriters at Lloyd's, London, 465 F.Supp.2d 308, 311 (S.D.N.Y.2006) (concluding that "[t]he mere six days between the time Global notified London Reinsurers of its objections to [an umpire nominee of London Reinsurers] and the time [Global] filed the instant Petition [requesting that the trial court appoint the umpire] cannot be characterized properly as a `lapse' that justifies judicial intervention"). Likewise, under the circumstances presented in this case, we cannot conclude that the alleged delay by Lexington in nominating candidates for the position of umpire was anything other than a minimal delay that did not justify judicial intervention at the time and of the nature achieved by SEH.
We also have before us the issue whether the trial court could have concluded that a "lapse" in the naming of an umpire occurred as a result of Lexington's alleged failure to have acted in good faith in the performance of its contractual obligations in relation to the selection of the umpire. SEH argues that Lexington committed "bad faith" in the umpire-selection process in two ways.
First, SEH argues that Gaynor's statements in his correspondence with Sullivan that the dispute about the proper venue for the arbitration proceedings should be settled before the selection of the umpire constituted a bad-faith attempt by Lexington to delay the appointment process. The correspondence between Gaynor and Sullivan shows, however, that both of them discussed the venue issue and that Gaynor
Second, SEH alleges that Lexington committed bad faith in the umpire-selection process by nominating two individuals — Frank Puccio and Robert Curley — who SEH claims should be removed because they are biased. SEH cites one lower federal court decision in support of its position that, where bias is shown, a trial court may intervene in a contractually agreed-upon process for selecting an arbitrator. In Third National Bank in Nashville v. WEDGE Group, Inc., 749 F.Supp. 851 (M.D.Tenn.1990), the court determined that a trial court may appoint a substitute arbitrator when "the potential bias of a named arbitrator makes arbitration proceedings a prelude to later judicial proceedings challenging the arbitration award." 749 F.Supp. at 855.
Lexington concedes that a party may challenge an arbitration award on the ground of "evident partiality" on the part of the arbitrator who entered it. Title 9 U.S.C. § 10(a)(2) provides, in pertinent part, that a federal district court "may make an order vacating the award upon the application of any party to the arbitration... where there was evident partiality or corruption in the arbitrators, or either of them." In tension with the authority cited by SEH, however, there is some authority for the view that challenges concerning allegations of bias on the part of an arbitrator are limited to the circumstance described in the statute (challenges
For purposes of this case, we assume that a court may intervene to appoint an arbitrator before an award is made when "evident partiality" on the part of a named arbitrator as contemplated by 9 U.S.C. § 10(a)(2) is shown. This assumption, however, does little to advance SEH's cause. SEH makes no argument regarding "evident partiality" on the part of a named arbitrator because, as of yet, there is no named arbitrator in this case. Instead, SEH's argument is that the selection process itself "lapsed" because Lexington acted in "bad faith" with respect to the contractually agreed-upon process for nominating a third arbitrator.
Assuming for the sake of argument that a contractually agreed-upon process for selecting an arbitrator may be considered to have "lapsed" as a result of a party's bad-faith efforts to comply with that process, we cannot conclude that such bad faith has been demonstrated in the present case. Among other things, SEH has cited no authority in either the trial court or in this Court for a legal standard to be applied in determining whether a party has acted either in "good faith" or in "bad faith" in nominating a candidate to serve as an arbitrator. The only case cited by SEH in its discussion of the merits of this issue is Waverlee Homes, Inc. v. McMichael, 855 So.2d 493 (Ala.2003). Waverlee Homes, however, differs from the present case in several ways.
First, Waverlee Homes differs from the present case factually. The facts indicating bias in Waverlee Homes involved a secret deal between plaintiff's counsel and a settling defendant as to the selection of the arbitrator. Furthermore, there was evidence that the arbitrator had acted as cocounsel with the purchaser's attorney on a similar case and that the arbitrator had made very similar rulings in other cases brought against mobile-home manufacturers by the same attorney. Finally, the purchasers did not submit any evidence to contradict the assertions.
The claims against Curley and Puccio in the present case differ markedly from those leveled against the arbitrator in Waverlee Homes. SEH claims that Curley is biased because his
SEH claims that Puccio is biased because his law firm had engaged in some representation of Lexington insureds in the past, because he once represented an insured in a case in which AIG Insurance, Lexington's parent company, was the excess carrier, and because his firm biography states that he excels in obtaining "defense verdicts."
Most of, though not all, the unsworn assertions against Curley are undisputed. Be that as it may, we find noteworthy the observation of the United States Court of Appeals for the Second Circuit in Morelite Construction Corp. v. New York City District Council Carpenters Benefit Funds, 748 F.2d 79 (2d Cir.1984):
748 F.2d at 83. Comparing the different contexts in which arbitrators and judges serve and the resulting importance of the role of disclosure relative to that of recusal in the selection of arbitrators, the court in Schmitz v. Zilveti, 20 F.3d 1043 (9th Cir. 1994), observed that "[e]xpert arbitrators will nearly always, of necessity, have numerous contacts within their field of expertise." 20 F.3d at 1046 (citing Commonwealth Coatings Corp. v. Continental Cas. Co., 393 U.S. 145, 150, 89 S.Ct. 337, 21 L.Ed.2d 301 (1968) (White, J., concurring) ("It is often because they are men of affairs, not apart from but of the marketplace, that [arbitrators] are effective in their adjudicatory function.")).
As to SEH's allegations regarding Puccio, the trial court apparently received into evidence without objection a letter from Lexington's counsel to SEH's counsel explaining that, "on rare occasions," Puccio's law firm had represented an insured of Lexington, but that "Mr. Puccio himself has never represented a primary insured of Lexington or AIG." Neither side in this
Waverlee Homes also differs from the present case with respect to the legal issue presented. Waverlee Homes involved a challenge to an actual award by a named arbitrator. It was not a case of alleged bad-faith performance by a party of its contractual obligations with respect to a nominating process, and it did not set forth a standard that governs the evaluation of such claims, nor for that matter did it address the more general question of whether and under what circumstances a court may intervene in the arbitrator-selection process.
In Waverlee Homes, this Court surveyed federal cases brought after the arbitrator had been named and after the arbitrator had made an actual award. 855 So.2d at 503-08. In most, if not all, of these federal cases, the issue was whether the arbitrator had failed to make a pre-selection disclosure of facts that might have demonstrated bias or a conflict of interest on his part and whether this nondisclosure itself demonstrated an "evident partiality" on the part of the arbitrator under 9 U.S.C. § 10(a)(2) so as to justify the vacatur of the resulting arbitration award. The opinion in one of these cases, Schmitz v. Zilveti, supra, provides a helpful explanation of the distinction between what have become known as "nondisclosure" cases and "actual bias" cases:
20 F.3d at 1045 (emphasis added).
After noting that two of its previous decisions had "involved allegations of actual bias rather than a failure to disclose," 20 F.3d at 1046, the Schmitz court additionally explained:
20 F.3d at 1046-47 (emphasis added).
It is not clear whether Waverlee Homes, itself, was a "nondisclosure" case or an "actual bias" case. Although the facts as described in the opinion suggest an "actual bias" case, the Court concluded its opinion with an endorsement of the "reasonable impression" standard articulated in the federal "nondisclosure" cases it had surveyed.
What Waverlee Homes clearly was not, however, was a "bad-faith" case. That is, unlike the present case, Waverlee Homes was not a case in which a party to an arbitration agreement claimed a § 5 "lapse" in the contractually agreed-upon process for selecting an arbitrator on the ground that the other party to the contract had breached an implied covenant of good faith in the performance of its contractual obligations with respect to that selection process. Accordingly, Waverlee Homes is of limited value to this Court insofar as articulating a guiding legal standard in what may be referred to as a "bad-faith" case.
It is safe to say, however, that, in a case in which a party to an arbitration agreement complains that the facts concerning a candidate for arbitrator are so bad that the very act of nominating that candidate rises to the level of bad faith, something more must be proven than merely facts, the conscious nondisclosure of which by the selected arbitrator ultimately is determined to demonstrate "evident partiality" on the part of that arbitrator. Nor in such a case would it be enough merely to prove facts that, in the final analysis, are deemed to provide a basis for finding that the arbitrator was actually biased. The ultimate determination of partiality on the part of the arbitrator, if partiality exists, is not the issue in such a case. The issue is whether the party nominating that candidate was acting in bad faith even to nominate that candidate. Accordingly, the "something more" that must be provided in order to establish such bad faith logically would have to include, at a minimum, proof that the nominating party, when making or pursuing the nomination, was actually aware of the underlying facts and also knew to some degree of certainty (exactly how much being an issue not necessary to this decision) that such facts were disqualifying in nature, yet proceeded to make the nomination anyway. In a case based solely on nondisclosure, this logically would mean that the nominating party must have been aware at the time of the nomination that such nondisclosure would occur.
In the present case, however, one may question whether, in all fairness, we can say that the arbitrator nominees failed to make required disclosures under circumstances from which a negative inference should be drawn. None of the candidates had yet been named as the third arbitrator, much less begun service, without making
Furthermore, Curley and Puccio do not appear to have made any effort to conceal the information in question. To the contrary, most, if not all, of it was made known to SEH by virtue of its publication for public consumption on Web sites sponsored by Curley and Puccio and their respective law firms.
Even if it could be said that Curley or Puccio failed to make some more specific disclosure at a time he should have done so, that it not the question here. The question is whether Lexington acted in bad faith even to nominate such person. To that end, there simply has been no showing that Lexington made or pursued the nomination of either candidate with an awareness that the candidate would fail to disclose material information relevant to his ability to be fair in the event he was selected to serve. Likewise, if the underlying issue is actual bias on the part of Curley or Puccio, there has been no showing that Gaynor made these nominations on behalf of Lexington with an awareness of facts he knew would disqualify either of them from service if selected. Additionally, when SEH contended that disqualification was appropriate, Lexington offered to nominate an additional candidate from which SEH could select.
For purposes of deciding this particular case, we find it appropriate to consider the totality of the factual and procedural circumstances presented, including the timing of and the procedural circumstances within which SEH chose to raise its bad-faith claims, the underlying facts concerning Curley and Puccio, and the offer Lexington made before the selection process had been completed to provide SEH with an additional choice for umpire. Under these circumstances, and in the absence of any legal standard requiring a different conclusion, we simply cannot find in this case adequate support for a conclusion that Lexington was guilty of bad faith that caused the contracted-for selection process to lapse. At the time and under the circumstances that the trial court acted, judicial intervention to appoint the umpire was not warranted.
For all the foregoing reasons, we conclude that the order from which Lexington appeals in this case was entered in error. That order is hereby reversed and the cause remanded.
REVERSED AND REMANDED.
MALONE, C.J., and STUART, MAIN, and WISE, JJ., concur.
WOODALL, BOLIN, PARKER, and SHAW, JJ., concur in the result.
We note that SEH's claim is contrary to the rules of contract construction. "It is black-letter law that arbitration agreements must be enforced according to general standards of contract law." Cook's Pest Control, Inc. v. Boykin, 807 So.2d 524, 526 (Ala.2001).
Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000). In other words, in a contract — and therefore in an arbitration agreement — 30 days means 30 days unless the contract provides some other indication. Particularly in an agreement between sophisticated business entities, if a deadline did not include weekends and holidays it is reasonable to assume that that would be stated. See, e.g., Certain Underwriters at Lloyd's London v. Argonaut Ins., 500 F.3d 571, 581 (7th Cir.2007) (concluding that the "parties are to be bound to the explicit language of arbitration clauses, with no state-specific exceptions that would extend otherwise clear contractual deadlines. Of course, sophisticated commercial parties such as these may provide by contract that thirty days does not include Sundays and holidays, or that a contract with a terminus for performance on a Sunday or holiday (as recognized by some identifiable body — state, federal or otherwise) may be timely performed on the next business day.").
780 F.Supp. at 77 (footnote omitted).
17 Misc.2d at 596-97, 185 N.Y.S.2d at 902-03. Thus, the trial court in Gayley Mill Corp. appointed an arbitrator to ensure the intended execution of its own earlier judgment. The court did not invoke or rely upon § 5 of the FAA in doing so.
855 So.2d at 508.
