Why This Case Matters

Arbitration clauses are everywhere in modern contracts, yet many litigants still assume that a Tennessee court can “correct” an unfavorable award if they point out enough factual errors or misstatements of law. The Court of Appeals’ opinion in MidSouth Construction, LLC v. Burstiner dispels that hope. The decision confirms that once parties have agreed to binding arbitration, the merits of the dispute leave the courthouse almost entirely and can return only through the narrow door provided by Tennessee Code Annotated § 29-5-313(a)(1).¹

The homeowner in Burstiner—appearing pro se—tried to pry that door open with accusations of “fundamental irrationality,” poor workmanship, and misapplication of Tennessee’s notice-and-cure doctrine. None worked. The appellate court emphasized that arbitrators enjoy the last word on contract interpretation, damages, and credibility, even if their reasoning would not survive ordinary appellate scrutiny. Understanding precisely why the challenge failed is essential for practitioners contemplating a motion to vacate (or oppose one) after an unfavorable award.

Factual and Procedural Context

Daniel Burstiner hired MidSouth Construction, LLC in August 2020 to demolish and rebuild a residential deck for roughly $55,000.² The contract incorporated the American Arbitration Association’s Construction Industry Rules, selected Davidson County, Tennessee, as the hearing site, and contained a one-sided prevailing-party attorney-fee clause.³ When disputes erupted over alleged defects, Burstiner withheld the final payment of $29,561.32, prompting MidSouth to record a contractor’s lien and file suit in Maury County Chancery Court.⁴

MidSouth’s verified complaint sought damages for breach of contract, unjust enrichment, and foreclosure of its lien. At the same time, the contractor moved to compel arbitration and stay the court action, invoking both the AAA clause and the Tennessee Uniform Arbitration Act (“TUAA”).⁵ The chancellor granted the motion by agreed order on May 12 2021, demonstrating Tennessee’s strong policy favoring arbitration.⁶

The parties arbitrated for two days in February 2023. The arbitrator found serious workmanship problems but also concluded that Burstiner repeatedly denied MidSouth access to repair them.⁷ Citing Tennessee’s requirement that an owner afford a reasonable opportunity to cure, the arbitrator awarded MidSouth the contract balance minus a set-off for remaining defects, plus attorney’s fees, AAA charges, and the arbitrator’s own compensation—totaling $50,827.77.⁸

Post-Award Motions and the Trial Court’s Role

Back in chancery court, Burstiner—now without counsel—filed a “petition to vacate arbitration award,” maintaining that MidSouth, not he, had breached first and that the arbitrator’s conclusions contradicted Tennessee law.⁹ MidSouth counter-moved to confirm and requested its post-award fees under TUAA § 29-5-315. The chancellor, while “struggl[ing] to reconcile” parts of the award with the arbitrator’s own factual findings, recognized that dissatisfaction with the merits is not enough under the statute.¹⁰

The court confirmed the award verbatim, relying on § 29-5-312, which commands confirmation unless a motion to vacate identifies a statutory defect within the prescribed period.¹¹ The judge nevertheless denied MidSouth’s request for additional fees, exercising discretion granted by § 29-5-315 to award or withhold costs of confirmation proceedings.¹²

The TUAA’s Statutory Framework for Vacating an Award

Section 29-5-313(a)(1) of the TUAA sets out five, and only five, circumstances that compel a Tennessee court to vacate an arbitration award: corruption or fraud in procurement; evident partiality or corruption by the arbitrator; arbitrator conduct exceeding contractual powers; refusal to postpone a hearing or consider material evidence; or absence of an agreement to arbitrate.¹³ Tennessee’s Supreme Court has repeatedly held that mistakes of fact or law—no matter how glaring—do not fall within these categories.¹⁴

The federal doctrine of “manifest disregard of the law,” sometimes labeled “irrationality,” never found a home in Tennessee. The Court of Appeals first rejected that ground in International Talent Group, Inc. v. Copyright Management, Inc.¹⁵ and the Tennessee Supreme Court sealed the matter in Arnold v. Morgan Keegan & Co., explaining that the TUAA’s grounds are exclusive.¹⁶ The Burstiner panel relied heavily on Arnold, emphasizing that the judicial function is “designed to minimize interference with an efficient and economical system of alternative dispute resolution.”¹⁷

Appellate Analysis of the Motion to Vacate

On appeal, Burstiner renewed his argument that the award was “fundamentally irrational,” largely because the arbitrator found both (1) clear workmanship defects and (2) a breach by the homeowner for refusing repairs.¹⁸ He asserted that these positions were inconsistent and, therefore, legally impossible. The Court disagreed, noting that inconsistent findings are not the same as statutory excess of authority. Arbitrators have wide latitude to weigh evidence, balance equities, and even apply law imperfectly without triggering vacatur.¹⁹

Burstiner also attempted to introduce e-mails, photographs, and other materials not present in the appellate record. The Court reiterated the basic rule that appellate review is confined to the record certified by the trial court; supplemental attachments to briefs carry no evidentiary weight.²⁰ Pro se status did not alter that rule, though the panel did waive several briefing deficiencies to address the substantive issues, applying Tennessee Rule of Appellate Procedure 2 in the interest of justice.²¹

Because none of Burstiner’s complaints mapped onto § 29-5-313(a)(1), the Court affirmed confirmation. The panel’s opinion thus reinforces that, absent statutory grounds, courts cannot transform an arbitration appeal into a traditional error-correction exercise.²²

Attorney’s Fees: Waiver Below, Recovery on Appeal

MidSouth sought two separate tranches of fees: (1) those incurred in the chancery court after the award issued, and (2) those incurred on appeal. The trial-level request relied solely on § 29-5-315, which vests the chancellor with discretion. Because MidSouth never invoked the contract’s prevailing-party clause at that stage, it could not raise that ground for the first time on appeal; the Court deemed the argument waived under ordinary preservation principles.²³

Appellate fees were a different story. MidSouth pleaded the contractual clause at the outset of its brief, and Tennessee law treats such clauses as mandatory once enforcement of the agreement becomes necessary.²⁴ By successfully defending the confirmation order, MidSouth qualified as the “prevailing party.” The panel remanded for the chancery court to determine a reasonable dollar figure, using familiar lodestar factors such as time expended, novelty of issues, and customary hourly rates.²⁵ The Court declined additional sanctions under Tennessee’s frivolous-appeal statute, warning that the remedy should be “used sparingly so as not to discourage legitimate appeals.”²⁶

Practical Lessons for Construction and Commercial Practitioners

First, if you represent a party considering a motion to vacate, start with § 29-5-313(a)(1). Ask whether you can prove corruption, partiality, excess of jurisdiction, extreme procedural unfairness, or a lack of an arbitration agreement. If the answer is “no,” a motion to vacate is almost certainly futile. Courts will not correct what they see as an arbitrator’s mistake—no matter how egregious—because the parties bargained for finality when they chose arbitration.²⁷

Second, preserve all contractual fee claims at every procedural stage. Relying only on § 29-5-315 risks forfeiting a mandatory fee award that might otherwise offset the cost of defending an award. Cite the clause in every post-award filing, and couple it with a detailed affidavit of time, rates, and tasks so the trial court has a record on which to base the award.²⁸

Third, remember that a party’s refusal to allow repairs can radically alter the equities in a construction dispute. The arbitrator in Burstiner acknowledged shoddy workmanship, yet still held the owner liable for most of the contract balance because he denied the contractor access to cure. Contractors should document all attempts to revisit the jobsite, and owners should think twice before shutting the door entirely.²⁹

Finally, when opposing a pro se challenge, insist that record rules be followed. Tennessee appellate courts will forgive some briefing missteps, but they will not look outside the record or create new arguments for the litigant. Object to extra-record attachments and remind the court of its confinement to the certified record.³⁰

Conclusion

“Final means final” may sound trite, but in the world of Tennessee arbitration law it is doctrine, not cliché. MidSouth Construction, LLC v. Burstiner shows that courts will enforce arbitration clauses with vigor, shutting the courthouse door to most attempts at second-guessing. Unless one of the TUAA’s narrowly defined defects exists, the award will stand—and the challenger may end up paying the other side’s appellate fees for trying. Practitioners would thus be wise to treat arbitration as the last stop for the merits and to focus post-award strategy on enforceability rather than re-litigation.