Pacitto v. Prignano, 2017 COA 101

Background

The Prignanos filed claims in a FINRA arbitration against registered rep Michele Pacitto; Pacitto counterclaimed. The arbitration panel denied the Prignanos’ claims and awarded Pacitto compensatory and punitive damages plus fees (against Mr. Prignano only).
The FINRA award was dated July 21, 2014; the notice advised parties they must file a motion to vacate under the Federal Arbitration Act or applicable state statute and warned of limited grounds and time limits for vacatur.
Months later, after Mr. Prignano had not paid, Pacitto sought confirmation of the arbitration award in district court. The Prignanos answered, later moved to vacate, and asserted a declaratory-judgment counterclaim seeking to void the award.
The district court confirmed the award, impliedly rejected the declaratory counterclaim, and held the Prignanos’ motion to vacate and counterclaim were untimely under Colo. Rev. Stat. § 13-22-223(2) (ninety-one days), so their objections were waived.
On appeal, the Prignanos argued § 13-80-109 (one-year compulsory counterclaim statute) permitted their filing and alternatively sought equitable tolling; the court rejected both and affirmed.
The court granted Pacitto appellate attorney fees and costs under § 13-22-225 and remanded to the district court to calculate amounts.

Issues

Issue	Plaintiff's Argument (Pacitto)	Defendant's Argument (Prignanos)	Held
Whether the ninety-one day UAA deadline bars tardy challenges to an arbitration award	The UAA's 91-day deadline is mandatory and precludes late vacatur; confirmation must be granted absent timely challenge	The Prignanos conceded late filing but argued § 13-80-109’s one-year counterclaim rule revives their challenge	Held: 91-day UAA deadline controls; § 13-80-109 does not apply to vacatur or revive untimely challenges
Whether a declaratory-judgment counterclaim can substitute for a motion to vacate	UAA permits only its specified remedies (vacate/modify/correct); declaratory relief is not an authorized method to challenge an award	Prignanos asserted their filing within one year qualifies as a counterclaim under § 13-80-109	Held: Declaratory judgment is not an available substitute; UAA’s exclusive procedures govern and preclude using general counterclaim statute
Whether equitable tolling rescues the Prignanos’ untimely challenge	No tolling warranted; parties were notified of rights and deadlines and gave no facts showing misleading conduct or excusable ignorance	Prignanos urged equitable tolling because they filed within one year and argued delay should be excused	Held: Equitable tolling rejected; UAA itself provides the appropriate tolling rule for fraud and similar claims
Whether the appellee is entitled to appellate attorney fees	Pacitto requested fees under the UAA	Prignanos offered no counterargument defeating statutory entitlement	Held: Appellate attorney fees and costs awarded; remanded to district court to calculate amount

Key Cases Cited

Kutch v. State Farm Mut. Auto. Ins. Co., 960 P.2d 93 (Colo. 1998) (failure to follow UAA challenge procedure bars objections in confirmation proceedings)
State Farm Mut. Auto. Ins. Co. v. Cabs, Inc., 751 P.2d 61 (Colo. 1988) (UAA provides exclusive procedural apparatus for challenging arbitrator power and awards)
State Farm Mut. Auto. Ins. Co. v. Broadnax, 827 P.2d 531 (Colo. 1992) (special statutory nature of arbitration limits applicability of general civil rules)
Int'l Bhd. of Elec. Workers, Local Union No. 969 v. Babcock & Wilcox, 826 F.2d 962 (10th Cir. 1987) (failure to move to vacate within prescribed period precludes later affirmative relief)
Sportsman's Quikstop I, Ltd. v. Didonato, 32 P.3d 633 (Colo. App. 2001) (late challenge to arbitration award barred in confirmation proceeding)
Move, Inc. v. Citigroup Global Markets, Inc., 840 F.3d 1152 (9th Cir. 2016) (discusses equitable tolling under FAA; distinguished by court here)
Superior Constr. Co., Inc. v. Bentley, 104 P.3d 331 (Colo. App. 2004) (failure to timely move to vacate under UAA bars challenge)