Arbitration in absentia confirmed. Untimely challenge.

UniFirst Corp. v. Junior’s Pizza, Inc., 2012 VT 13 (mem.)

This is an appeal by defendant Junior’s Pizza, Inc. from a superior court decision confirming an arbitration award in favor of plaintiff UniFirstCorporation. The trial court held that Junior’s waived its right to object to arbitration by failing to challenge the award within thirty days of receiving notice. Junior’s appeal argues that it did not waive its right to object to the arbitration award, and that UniFirst was required to petition to compel arbitration prior to engaging in arbitration without Junior’s participation. We affirm.

Under the Vermont Arbitration Act (VAA), 12 V.S.A. §§ 5651-5681, we must confirm an arbitration award unless grounds are established to vacate or modify it. Although Junior’s has not moved to vacate the arbitration award, it objected to the award in opposition to UniFirst’s motion to confirm. As an attempt to vacate the arbitration award, Junior’s objection is untimely. Under the VAA An application to vacate an award shall be made within 30 days after delivery of a copy of the award to the applicant,12 V.S.A. § 5677(c). Junior’s waived any objections it may have had by failing to seek a vacatur within 30 days. For this reason, the superior court correctly granted summary judgment for UniFirst.

In any event, Junior’s objection is groundless. UniFirst was not required to petition to compel Junior’s to arbitrate before proceeding with arbitration in Junior’s absence. The Commercial Arbitration Rules of the AAA. Rule 29 provides that the arbitration may proceed in the absence of any party or representative who, after due notice, fails to be present or fails to obtain a postponement The VAA provides that “arbitrators may hear and determine the controversy upon the evidence produced notwithstanding the failure of a party duly notified to appear.” 12 V.S.A. § 5666. Thus, an arbitration hearing may proceed without the participation of an unwilling party. There is no rule requiring a party to compel an unwilling adversary to participate in arbitration.