Justice Charles Ramos
In this action arising from an arbitration award granting Colorado Energy Management (CEM) $1 million and Lea Power Partners (LPP) $22,043,302, CEM moved to confirm its award and vacate the LPP award, while LPP cross-moved to dismiss the petition and confirm its award. The arbitrator concluded CEM’s second counterclaim for a development fee was a claim arising from the parties contract and was arbitrable. At oral argument, the court granted vacatur of the LPP award, but reserved decision on confirming the CEM award. LPP argued the parties did not agree to binding arbitration of CEM’s development fee. CEM argued re-litigation of this issue was barred by res judicata as LPP participated in the arbitration that ultimately resolved the claim on the merits. The court agreed finding re-litigation of the development fee claim was precluded under res judicata as a prior order clearly established the claim was raised during arbitration and adjudicated on the merits between the parties. Thus, as LPP had an opportunity to challenge the arbitrator’s decision regarding the arbitrability of the claim, but failed to do so, it was barred from re-litigating the claim. Hence, dismissal of the petition and confirmation of LPP’s award was denied.
