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Pacitto v. Prignano

Court of Appeals of Colorado, Seventh Division

July 27, 2017

Michele Pacitto, Jr., Plaintiff-Appellee,
v.
Charles M. Prignano and Francis P. Prignano, Defendants-Appellants.

         El Paso County District Court No. 14CV34155 Honorable David A. Gilbert, Judge

          Announced July 27, 2017 Gene R. Thornton, P.C., Gene R. Thornton, Colorado Springs, Colorado, for Plaintiff-Appellee

          Fennemore Craig, P.C., Troy R. Rackham, Michael G. Bohan, Denver, Colorado, for Defendants-Appellants

          OPINION

          RICHMAN JUDGE

          ¶ 1 Defendants Charles M. and Frances P. Prignano appeal the district court's confirmation of an arbitration award and denial of their motion to vacate that award. We affirm the judgment and remand for a calculation and award of appellate attorney fees and costs to plaintiff Michele Pacitto, Jr.

         I. Background

         ¶ 2 The Prignanos asserted multiple claims against Pacitto, a registered representative, in a Financial Industry Regulatory Authority (FINRA) securities industry arbitration. Pacitto raised several counterclaims. The arbitration panel denied the Prignanos' claims, and awarded Pacitto compensatory damages, punitive damages, and fees solely against Mr. Prignano. The panel did not specify which counterclaims served as the basis for the awards.

         ¶ 3 The Prignanos received notice of the arbitration decision, dated July 21, 2014, explaining their rights to challenge the award. The notice stated "all monetary awards shall be paid within 30 days of receipt unless a motion to vacate has been filed with a court of competent jurisdiction." It further explained that to challenge the award a party "must make a motion to vacate the award in a federal or state court of appropriate jurisdiction pursuant to the Federal Arbitration Act, 9 U.S.C. § 10, or applicable state statute." The notice cautioned parties that "[t]here are limited grounds for vacating an arbitration award, and a party must bring a motion to vacate within the time period specified by the applicable statute." It also urged unrepresented parties to seek legal advice.

         ¶ 4 Many months later, when Mr. Prignano had not paid the award, Pacitto filed a combined complaint and motion to confirm the arbitration award in district court. The Prignanos filed an answer stating several challenges to the award's validity as affirmative defenses. Later, they filed a motion to vacate the award. In their amended answer, they counterclaimed for a declaratory judgment vacating the award.

         ¶ 5 The district court order confirmed the arbitration award. In doing so it impliedly rejected the declaratory judgment counterclaim. The court also determined the Prignanos filed the motion to vacate well past the ninety-one day deadline in section 13-22-223(2), C.R.S. 2016.[1] Accordingly, the district court concluded the Prignanos waived their right to object to the confirmation of the award.

         ¶ 6 The Prignanos now appeal, asserting that the district court erred in applying the ninety-one day deadline in section 13-22-223(2) and in failing to extend the deadline for filing a counterclaim for one year pursuant to section 13-80-109, C.R.S. 2016, when it confirmed the award. We disagree with the Prignanos and therefore affirm.

         II. Preservation and Standard of Review

         ¶ 7 The Prignanos preserved their challenge in their briefing below. We review de novo a district court's legal conclusions on a motion to confirm or vacate an arbitration award and its interpretation of the counterclaim revival statute. PFW, Inc. v. Residences at Little Nell Dev., LLC, 2012 COA ...


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