Appellant Bernice Sommers, as executrix of the Estate of Sheldon Charles Sommers, (the “Estate”) appeals the trial court’s confirmation of an arbitration award in favor of Appellees Wendy Sommers, Mary Lee Sommers Gosz and Julie Sommers Neuman (collectively the “Nieces”). We affirm.
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Under Section 11.01 of the Operating Agreement [at issue], it provides that arbitration of any controversy among the members “shall be governed by the United States Arbitration Act, 9 U.S.C. Sections 1 – 16[.]” Appellant’s Appendix at 85. Where a party seeks to vacate, modify or correct an arbitration award, Section twelve of the Federal Arbitration Act (“FAA”) mandates that the party serve a motion to vacate, modify or correct upon the adverse party within three months after the award is filed or delivered. 9 U.S.C. § 12. Sections ten and eleven provide the grounds for such relief. See 9 U.S.C. §§ 10-11. Thus, if a party is dissatisfied with the arbitration award, he must file a motion to vacate, modify or correct within three months after the award is filed or delivered and establish one or more of the circumstances outlined in Sections ten and eleven. Here, the Estate never filed such a motion. Rather, the Nieces filed a motion to confirm the arbitration award.
Section nine of the FAA provides that upon a motion to confirm an arbitration award, “the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.” 9 U.S.C. § 9 (emphasis added). The U.S. Supreme Court recently noted that “[t]here is nothing malleable about ‘must grant,’ which unequivocally tells courts to grant confirmation in all cases, except when one of the ‘prescribed’ exceptions applies.” Hall St. Assoc., L.L.C. v. Mattel, Inc., 128 S. Ct. 1396, 1405 (2008). Here, because the Estate failed to file the requisite motion and demonstrate one of the circumstances in Sections ten and eleven of the FAA, the trial court was required to confirm the award.
The Estate argues that failure to file a motion to vacate, modify or correct does not prohibit them from defending a motion to confirm with one of the prescribed exceptions in Sections ten and eleven. Federal caselaw dictates otherwise. In Cullen v. Paine, Webber, Jackson & Curtis, Inc., a panel of the Eleventh Circuit followed the lead of the Second Circuit, holding that a party’s failure to move to vacate, modify or correct an arbitration award within the three-month window provided by Section twelve precludes that party from later seeking such relief when opposing a motion to confirm the award. Cullen v. Paine, Webber, Jackson & Curtis, Inc., 863 F.2d 851, 853 (11th Cir. 1989). The Cullen Court also noted that other Circuit Courts of Appeal arrived at the same conclusion in analogous scenarios involving state arbitration statutes that contain similar three-month statutes of limitation. Id. at 853-54 (including Chauffeurs, Teamsters, Warehousemen and Helpers, Local Union No. 135 v. Jefferson Trucking Co., 628 F.2d 1023, 1025 (7th Cir.1980) (Indiana statute)). Therefore, because the Estate failed to file a motion to vacate, modify or correct within the prescribed time it has waived these arguments in defending the Nieces’s motion to confirm. The trial court properly confirmed the arbitration award.
RILEY, J., and BROWN, J., concur.