Opinion
No. 35601-5-II.
September 5, 2007.
Appeal from a judgment of the Superior Court for Kitsap County, No. 05-2-02440-4, Theodore F. Spearman, J., entered October 27, 2006.
Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Armstrong and Penoyar, JJ.
Donald C. and Jane Doe King appeal the trial court's denial of their motion to vacate an arbitrator's award to Hudson Company, Inc. for $25,062.94 for contract damages, $53,707.50 for attorney fees, $1,540.15 for costs, and $633.68 for interest to date of judgment, totaling $80,944.27. King argues that the trial court erred in not vacating the arbitration award because (1) the arbitrator was impermissibly partial to Hudson Company and (2) the arbitrator exceeded his authority by awarding attorney fees when the parties used arbitration to resolve their disputes. We affirm.
We refer to the appellants as King.
FACTS
I. Construction Contract
Hudson Company entered into a contract with Donald C. King to remodel King's Bainbridge Island property. Barbara Nelson, King's agent, authorized the construction work to begin on December 16, 2004, and signed the construction contract (Contract) on March 1, 2005. The Contract contained an arbitration provision and two provisions concerning attorney fees.
Under paragraph 9, the Contract provided:
9. Disputes and Remedies
Any dispute between the parties shall be resolved through the Seattle office of Judicial Dispute Resolution, LLC (JDR) using a two-step process. The first step will involve an effort by the parties to settle the dispute by agreement, with JDR providing mediation services in accordance with its ordinary practices. The second step, if mediation fails, will involve binding arbitration of the dispute, conducted in accordance with JDR's applicable rules. The parties will bear the cost of their own [attorney] fees and expenses arising from any and all disputes mediated or arbitrated under this provision; and the parties will share equally in the fees charged by JDR.
Clerk's Papers (CP) at 54 (emphasis added).
The Contract also provided, under the heading "Progress Payments" in paragraph 11, that:
As long as Owner makes all payments required under this Agreement, Contractor shall claim no lien against Premises. In the event of default and payment is not made within three (3) days, owner will pay all costs of collection including attorney fees. Past due balances will be assessed at 1½ % interest per month until balance is paid in full.
CP at 54 (emphasis added).
II. Construction Lien and Litigation
On June 1, 2005, Hudson Company placed a claim of lien on King's property for unpaid construction services. Hudson Company claimed a lien amount of "$37,372.60 plus interest, reasonable [attorney] fees and taxable costs." CP at 10.
On October 7, Hudson Company sued King, claiming King had not paid for the remodel project as agreed and still owed Hudson Company $37,372.60 plus interest. Hudson Company contended that it had requested mediation/arbitration as the Contract required but King was uncooperative, evasively refusing to schedule a timely mediation. In addition, Hudson Company asserted that it was entitled to reasonably incurred attorney fees under RCW 60.04.181.
King answered Hudson Company's complaint raising ten affirmative defenses, including that Hudson Company's claim was subject to mandatory mediation and arbitration. King also counterclaimed, alleging, among other things, that Hudson Company breached the Contract, failed to enter into mediation/arbitration, and performed defective workmanship.
On February 7, 2006, King moved to stay the proceeding pending the contractually required arbitration and mediation under paragraph 9 of the Contract. Hudson Company responded that King waived the arbitration provision by refusing to participate in mediation and by invoking the judicial civil litigation discovery process. Further, it argued that if required to mediate, the parties should be ordered to mediate under Kitsap County Local Rule 87. Hudson Company also argued that King's actions forced it to incur considerable attorney fees.
Kitsap County Local Rule 87 provides for actions eligible for court-sponsored mediation and arbitration: "(1) Any complex civil matter may be mediated under these rules. . . . (2) Mandatory arbitration or family law type cases may not be mediated under these rules. Except as otherwise set forth in (a) above, only matters specified by the court or by rule shall be referred to mediation under these rules."
The trial court granted the order staying the action "pending mediation and arbitration as required by the contract between the plaintiff and defendant effective March 10, 2006." CP at 100. The court also ordered the "[p]arties [to] explore an inexpensive alternative to JDR for mediation." CP at 100.
III. Mediation and Arbitration
Instead of using JDR, the parties selected Donald Logerwell as the mediator. Before the mediation, Logerwell disclosed in an e-mail correspondence, which was forwarded to both counsel for King and counsel for Hudson Company, that he was looking "forward to working with two lawyers (Tom Dreiling [counsel to Hudson Company] and Shawn Hicks [counsel to King]) whom I've known and worked with in the past." CP at 120 (emphasis added). The mediation process was not successful.
The parties then selected Logerwell to continue to serve as their arbitrator. On May 9, Logerwell wrote to the parties to confirm the details of the upcoming arbitration under the "Agreement Regarding Binding Arbitration which we all signed on April 11, 2006." CP at 174.
The record on appeal contains no information about mediation. These facts are gathered circumstantially from an e-mail from Hudson Company's counsel's paralegal confirming mediation for April 11, 2006, and from Logerwell's letter on May 9, 2006. At oral argument, the parties admitted that they did not use JDR.
The April 11, 2006, agreement is not contained in the appellate record.
He stated:
Finally, to confirm the information relayed to you prior to, and during, the mediation and referenced in the last paragraph of the Agreement, I wish to document my disclosures as follows:
1. Shawn Hicks: I have served as a neutral on at least two occasions in matters where Shawn was representing one of the parties — one was an arbitration and the other a mediation. There may have been others but I recall only these two.
2. Tom Dreiling: Tom represented a friend of mine in a bankruptcy related matter some time in the mid 1980's — that friend became my wife in 1997. I also have some vague recollection that I served as a mediator for Tom at some point in time, many years ago, but have no better recollection than that.
CP at 174-75 (emphasis added). The parties arbitrated their dispute on June 13 and 14 and
Logerwell issued his arbitration award on July 5, 2006.
Logerwell (1) ordered King to pay Hudson Company $25,062.94, which included interest until July 5, as contractual damages, (2) determined that judgment should be entered based on his award and the lien should be foreclosed, and (3) ordered King to pay Hudson $53,707.50 in attorney fees and $1,540.15 in costs under RCW 60.04.181(3).
On July 13, Hudson Company moved to confirm the July 5 arbitration award, enter monetary judgment, and foreclose the lien. King opposed the motion, arguing that the trial court should deny Hudson Company's award of attorney fees and, for the first time, that Logerwell was not impartial and exceeded his powers.
In addition, Hicks submitted a declaration stating, under penalty of perjury:
After the mediation, but before the arbitration, Donald Logerwell disclosed that he his [sic] wife was represented by Mr. Dreiling. . . . During the arbitration, I heard Mr. Logerwell visit in a very friendly fashion with his old friend, Tom Dreiling. They talked about how they had socialized with each many times of [sic] the many years that they have known each other. The[y] mentioned that they once saw each other in Hawaii. I became increasingly concerned that Mr. Logerwell was evidentially partial to Mr. Dreiling, and his client, to the prejudice of me and my client.
CP at 164.
Dreiling, responded under penalty of perjury:
3. By email from defense counsel on February 17, 2006, I was informed the defense's "first choice" for a neutral was Donald Logerwell. My client accepted him and the parties scheduled a mediation for April 11, 2006.
This e-mail is not a part of the appellate record.
4. On February 23, 2006, Mr. Logerwell advised that he knew and had worked with both counsel before. Defense counsel received a copy of his email February 27, 2006. . . .
5. The defense representative, Barbara Nelson, was at least two hours late to the April 11, 2006, mediation. Before the mediation actually got started, Mr. Logerwell, defense counsel and I spoke about our prior mutual dealings. Mr. Logerwell told me he had been a mediator and arbitrator on matters presented by Mr. Hicks in the past. Mr. Logerwell also told Mr. Hicks that, long ago, I had successfully collected a debt for a women who Mr. Logerwell subsequently married. Mr. Logerwell also recalled that my wife and I saw Mr. Logerwell jogging on Kalakaua Avenue, in Honolulu, in approximately December of 1980 and that the three of us briefly spoke on that occasion. I can recall that Mr. Logerwell was in Hawaii for a deposition. I was in Hawaii as a speaker at a WSBA annual convention.
6. Neither Mr. Hicks nor I voiced any concern about these "water cooler" discussion before the mediation began. . . .
. . . .
8. Before the arbitration occurred, Mr. Logerwell wrote to both counsel (May 9, 2006) and confirmed his prior disclosures of having had contact in the past with both counsel. . . .
9. Neither Mr. Hicks nor I voiced any concern about these written disclosures.
10. I have had no social relationship with Mr. Logerwell.
11. It is my recollection that I concluded my collection matter for the woman he subsequently married in 1988.
CP at 116-17.
The trial court confirmed the arbitrator's award, but it granted King leave to bring a motion to vacate confirmation of the award. On September 29, King moved to vacate the arbitration award, alleging that "Logerwell exceeded his powers by awarding [attorney] fees that were expressly precluded under the terms of the [Contract] and [that Logerwell] showed evident partiality." CP at 183.
Both parties again filed their earlier declarations from the hearing to confirm the arbitration award. Hudson Company opposed King's motion to vacate arguing, among other things, that there was no evident partiality on the part of Logerwell and that Logerwell properly interpreted paragraphs 9 and 11 of the Contract in awarding Hudson Company attorney fees.
The court invited additional briefing on the applicable standards of review for a motion to vacate an arbitrator's award. The trial court then denied King's motion to vacate the arbitration award and refused to award Hudson Company attorney fees for resisting King's motion to vacate the award.
Again, the record on appeal does not contain this order. This fact is gathered from circumstantial evidence in Hudson Company's supplemental briefing.
King appeals.
ANALYSIS
I. Applicable Arbitration Statute and Challenge to Arbitrator's Impartiality
Initially, King and Hudson Company disagree about which version of the arbitration statutes govern their contract, former chapter 7.04 RCW (1943) or chapter 7.04A RCW, effective in 2006. We briefly address this issue, but it is not determinative in resolving the parties' disputes.
A. Applicable Arbitration Statute
During the 2005 legislative session, the legislature adopted the Revised Uniform Arbitration Act (RUAA). Laws of 2005, ch. 433. It repealed former chapter 7.04 RCW, the former uniform arbitration act, and enacted the RUAA as chapter 7.04A RCW. The chapter sets out when the RUAA governs arbitration agreements.
(1) Before July 1, 2006, this chapter governs agreements to arbitrate entered into:
(a) On or after January 1, 2006; and
(b) Before January 1, 2006, if all parties to the agreement to arbitrate or to arbitration proceedings agree in a record to be governed by this chapter.
(2) On or after July 1, 2006, this chapter governs agreements to arbitrate even if the arbitration agreement was entered into before January 1, 2006.
RCW 7.04A.030. Here, the parties entered into the Contract before January 1, 2006, and they completed arbitration by June 14, 2006. Thus, by the plain statutory language, the RUAA only applies to the parties' arbitration proceedings "if all parties to the agreement to arbitrate or arbitration proceedings agree[d] in a record to be governed by" the RUAA. RCW 7.04A.030(1)(b).
King argues that this court should interpret the phrase "agreement to arbitrate" not to mean the Contract, but rather the parties' agreement to arbitrate entered into with the arbitrator on April 11. We do not address the statutory interpretation issue because the result does not depend on the version of the arbitration statute that applies to this case.
The record does not contain the April 11, 2006, agreement regarding binding arbitration, where the parties allegedly agreed to arbitrate under the RUAA, although the arbitrator entered his arbitration award under the heading, "IN PRIVATE ARBITRATION UNDER R.C.W. Ch. 7.04A." CP at 109.
King apparently lost this agreement and could not obtain a copy. On appeal, he asked us to consider his declaration concerning the April 11, 2006, agreement and e-mails where he asks Hudson Company's counsel and Logerwell for a copy of the agreement. We denied that motion.
When King contested the arbitration award, both parties, with one exception, briefed the arbitration issues by referring only to chapter 7.04A RCW, not former chapter 7.04 RCW. The sole exception was Hudson Company's supplemental brief, the final brief submitted to the trial court, in which it addressed the "Impact of New Statute." CP at 286. There, it stated: "The new arbitration statutes became effective January 1, 2006, and, according to RCW 7.04A.030, do not apply to this case. However, the only difference in the new statute that relates to a motion to vacate an award eliminates presently unimportant language." CP at 286.
The trial court did not rule which statute applied. Whether there was an agreement to arbitrate under the RUAA involves resolving factual issues that we will not decide on appeal. Because we do not believe the version of the arbitration act dictates the result of the opinion, we do not further analyze which chapter applied here.
King argues that Hudson Company should be judicially estopped from claiming former chapter 7.04 RCW applies because he claims that Hudson Company never made that argument to the trial court. Reply Br. of Appellant at 10-11. "'Judicial estoppel is an equitable doctrine that precludes a party from asserting one position in a court proceeding and later seeking an advantage by taking a clearly inconsistent position.'" Arkison ex rel. Carter v. Ethan Allen, Inc., 160 Wn.2d 535, 538, 160 P.3d 13 (2007) (quoting Bartley-Williams v. Kendall, 134 Wn. App. 95, 98, 138 P.3d 1103 (2006)). But in his brief, King neglects to inform us of Hudson Company's argument in its supplemental memorandum to the trial court. Because we do not believe the version of the uniform arbitration act that applies dictates the result, we do not decide this issue.
B. Challenge to Arbitrator's Impartiality
King alleges that Logerwell was partial to Hudson Company because he did not fully disclose his relationship with Dreiling. "Arbitration is a preferred means of settling disputes without litigation, in which an arbitrator is the judge of both the law and the facts. A trial court's limited authority to confirm, vacate, modify, or correct an arbitration award arises from statute." Hanson v. Shim, 87 Wn. App. 538, 545, 943 P.2d 322 (1997) (footnote omitted); Davidson v. Hensen, 135 Wn.2d 112, 118, 954 P.2d 1327 (1998) (arbitration is statutory proceeding; the rights of the parties to it are controlled by statutes and their contract).
The trial court may vacate the arbitration award if the arbitrator was evidently partial. See RCW 7.04A.230(1)(b)(i); former RCW 7.04.160(2). But the stated standard of review of an arbitrator's award for evident partiality is one of first impression for this court. Although Washington courts have decided the issue, they have not articulated the standard of review that they applied in cases where one of the parties alleged that the arbitrator was partial. But decisions from other jurisdictions have expressly addressed this issue, concluding that review of an arbitrator's conduct for evident partiality is a question of law that courts review de novo. Aaron v. Illinois Farmers Ins. Group, 590 N.W.2d 667, 669 (Minn.App. 1999); Pirsig v. Pleasant Mound Mut. Fire Ins. Co., 512 N.W.2d 342, 343 (Minn.App. 1994); Thomas v. City of North Las Vegas, 122 Nev. 82, 127 P.3d 1057, 1067 (2006); Borst v. Allstate Ins. Co., 291 Wis. 2d 361, 384, 717 N.W.2d 42 (2006); DeBaker v. Shah, 194 Wis. 2d 104, 112, 533 N.W.2d 464 (1995). Based on the weight of authority, we will review de novo whether Logerwell was evidently partial.
RCW 7.04A.230(1)(b)(i) provides: "the court shall vacate an award if:. . . . (b) There was: (1) Evident partiality by an arbitrator appointed as a neutral." Former RCW 7.04.160(2) provides: "the court shall after notice and hearing make an order vacating the award. . . . (2) Where there was evident partiality or corruption in the arbitrators or any of them."
See Northern State Const. Co. v. Banchero, 63 Wn.2d 245, 249-50, 386 P.2d 625 (1963) (arbitration awards may be vacated only on statutory grounds); Hanson v. Shim, 87 Wn. App. 538, 545-48, 943 P.2d 322 (1997) (the party seeking vacation must prove that the arbitrator violated one of limited statutory grounds for vacation of an award, the reviewing court only considers the face of the award); Schreifels v. Safeco Ins. Co., 45 Wn. App. 442, 444-49, 725 P.2d 1022 (1986) (same); St. Paul Ins. Cos. v. Lusis, 6 Wash. App. 205, 208-15, 492 P.2d 575 (1971) (The trial court must determine whether one of the limited statutory grounds exist to vacate the award.).
Under both former chapter 7.04 RCW and chapter 7.04A RCW, a party who challenges the impartiality of an arbitrator must do so in a timely manner, i.e., upon learning of any basis of partiality and before the arbitrator makes a decision. RCW 7.04A.120(4) ("If the arbitrator did not disclose a fact as required by subsection (1) or (2) . . . upon timely objection of a party, an award may be vacated."); Hanson, 87 Wn. App. at 548 (Under former chapter 7.04 RCW, a party who knows of potential conflict, even when that conflict is disclosed during arbitration, cannot wait to see whether the award is favorable to him before raising a challenge that he was aware of before the arbitrator made the award.).
It is undisputed that Logerwell disclosed that he had previously worked with both attorneys before mediation, disclosed his specific relationships with both attorneys, and disclosed Hudson Company's attorney's former representation of Logerwell's wife prior to the commencement of the arbitration. It is also undisputed that King did not protest Logerwell's continued service until after Logerwell entered his arbitration award in favor of Hudson Company. We hold that King's delay is fatal to his claim that the arbitration award should be vacated based on Logerwell's lack of impartiality and that the trial court did not err in denying his motion to vacate the award.
II. Arbitrator's Scope of Authority to Award Attorney Fees and Review of Award
King also asks us to vacate the arbitrator's award of attorney fees to Hudson Company. King argues that Logerwell exceeded his authority by impermissibly awarding Hudson Company attorney fees because the parties had agreed that the claims for attorney fees would not be submitted to the arbitrator under paragraph 9 of the Contract and that the trial court erred by not vacating this portion of the arbitration award.
Former chapter 7.04 RCW and chapter 7.04A RCW contain similar provisions about vacating an arbitration award based on an arbitrator exceeding their power. Former RCW 7.04.160 provided: "[T]he court shall after notice and hearing make an order vacating the award. . . . (4) Where the arbitrators exceeded their powers, or so imperfectly executed them that a final and definite award upon the subject matter submitted was not made." And RCW 7.04A.230(1)(d) provides: "[T]he court shall vacate an award if:. . . . (d) An arbitrator exceeded the arbitrator's powers."
A. Scope of Arbitrator's Authority
King essentially argues that Logerwell did not have the power to determine attorney fees, i.e., that he exceeded the scope of the arbitration. "The general rule is that whether and what the parties have agreed to arbitrate is an issue for the courts to decide unless otherwise stipulated by the parties. . . . Like all questions of law, we review questions of arbitrability de novo." Tacoma Narrows Constructors v. Nippon Steel-Kawada Bridge, Inc., 138 Wn. App. 203, 213-14, 156 P.3d 293 (2007).
Unlike former 7.04 RCW, chapter 7.04A RCW expressly addresses an arbitrator's award of attorney fees for an arbitration hearing. RCW 7.04A.210(2) provides: "An arbitrator may award [attorney] fees and other reasonable expenses of arbitration if such an award is authorized by law in a civil action involving the same claim or by the agreement of the parties to the arbitration proceeding."
King acknowledges that RCW 60.04.181 permits an award of attorney fees, but he argues that the parties agreed in paragraph 9 of the Contract that each party would pay their own fees for any dispute they arbitrated. Because King's argument is the same under both statutes, we do not determine which statute governs the Contract to decide this case.
And although Hudson Company unsuccessfully requested attorney fees for its post-arbitration efforts to confirm the arbitration award, the trial court denied its request and Hudson Company does not appeal that ruling. Former chapter 7.04 RCW does not discuss attorney fees for post-arbitration efforts. It only states that the trial court could award specified costs, not to exceed twenty-five dollars and disbursements. Former RCW 7.04.190. But RCW 7.04A.250 states: "(2) A court may allow reasonable costs of the motion and subsequent judicial proceedings. (3) On application of a prevailing party . . . the court may add to a judgment confirming . . . an award, [attorney] fees and other reasonable expenses."
We consider four principles to determine if the parties agreed to submit a particular dispute to arbitration:
(1) the duty to submit a matter to arbitration arises from the contract itself; (2) the question of whether parties have agreed to arbitrate a dispute is a judicial one unless the parties clearly provide otherwise; (3) a court should not determine the underlying merits of a dispute in determining the arbitrability of an issue; and (4) arbitration of disputes is favored by the courts.
Kamaya Co., Ltd. v. Am. Prop. Consultants, Ltd., 91 Wn. App. 703, 713-14, 959 P.2d 1140 (1998) (quoting W.A. Botting Plumbing § Heating Co. v. Constructors-Pamco, 47 Wn. App. 681, 683, 736 P.2d 1100 (1987)). In determining arbitrability, we look to the parties' intent in the agreement, but we generously construe the parties' intentions toward arbitrability. Kamaya, 91 Wn. App. at 714. "In other words, 'any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.'" Kamaya, 91 Wn. App. at 714 (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L. Ed. 2d 765 (1983)); Mendez v. Palm Harbor Homes, Inc., 111 Wn. App. 446, 455-56, 45 P.3d 594 (2002). Thus, unless we can determine positively that a dispute was not subject to arbitration, we will determine that the dispute was arbitrable. Kamaya, 91 Wn. App. at 714; Mendez, 111 Wn. App. at 456.
Here, the parties agreed that they would arbitrate all their disputes. Paragraph 9 of the Contract states that "Any dispute between the parties shall be resolved through the Seattle office of Judicial Dispute Resolution, LLC (JDR)." CP at 54. Furthermore, if they arbitrated at JDR, each would pay their own attorney fees.
King relies on Agnew v. Lacey Co-Ply, 33 Wn. App. 283, 288-89, 654 P.2d 712 (1982) to support his contention that the arbitrator exceeded his power by awarding attorney fees. In Agnew, the parties agreed that the prevailing party in litigation or arbitration would be entitled to attorney fees based on an alleged breach of the agreement. Despite this provision, the arbitrator refused to award attorney fees. Agnew, 33 Wn. App. at 285-86. On appeal, Division One held that it "was not an issue submitted to the tribunal for arbitration with the other claims and disputes; having already been decided by the parties by agreement, it was not arbitrable." Agnew, 33 Wn. App. at 288. Holding "otherwise would require [the court] to ignore the express language of a contract," thus, the arbitrator in Agnew exceeded his powers by refusing to award fees that the parties' contract provided, thus, resolving a question that he had no power to resolve. Agnew, 33 Wn. App. 288.
Here, although the Contract is not as clear as the agreement in Agnew, we agree that Agnew is instructive. Paragraphs 9 and 11 of the Contract both address attorney fees. Paragraph 9 expressly provides that each party will pay their own attorney fees and costs if they use JDR to resolve their issues. Paragraph 11 specifically provides that King is to pay Hudson Company's fees if the issue relates solely to King's nonpayment of amounts due. The parties did not use JDR for mediation or arbitration and the court ordered them to consider less expensive mediation alternatives.
The underlying dispute, which prompted the mediation and arbitration, was nonpayment by King for which Hudson Company claimed a lien on King's property, as provided under paragraph 11. King disputed the amount claimed by Hudson Company.
Hudson Company's complaint requested fees and costs under RCW 60.04.181 based on King's nonpayment. But King insisted that the trial court required them to resolve Hudson Company's suit for payment and fees in arbitration or mediation. King also argued that Hudson's Company's attorney fees were inflated and Hudson Company would have incurred those fees even if the parties had gone only to arbitration. In its arbitration brief, Hudson Company informed the arbitrator:
The appellate record only contains Hudson Company's arbitration brief. It does not contain King's brief or any transcript of the proceeding.
Paragraph 11 of the contract allows for collection-type disputes to reimburse the contractor his reasonably incurred [attorney] fees. This was not a construction-related dispute (9). [Hudson Company] stopped working since it was overdue thousands of dollars. Reasonable [attorney] fees are allowed in a lien case that is arbitrated. RCW 60.04.181(3).
RCW 60.04.181(3) provides in part:
The court may allow the prevailing party in the action, whether plaintiff or defendant, as part of the costs of the action, the moneys paid for recording the claim of lien, costs of title report, bond costs, and [attorney] fees and necessary expenses incurred by the attorney in the superior court, court of appeals, supreme court, or arbitration, as the court or arbitrator deems reasonable.
CP at 145. And King argued in his supplemental brief on his motion to vacate the arbitration award, "At best, the provisions in paragraph 11 of the contract create an ambiguity." CP at 271.
King argued that the trial court should have construed the contractual ambiguity against Hudson Company, who drafted the contract. We do not find the Contract ambiguous.
Under these circumstances, the parties decided the issue of attorney fees in the Contract, agreeing that Hudson Company would receive its fees if it had to sue King for payment and the arbitrator did not exceed his authority in awarding fees and costs.
B. Judicial Review of Arbitration Attorney Fees Award
Judicial review of an arbitration award is "limited to the face of the award. In the absence of an error of law on the face of the award, the arbitrator's award will not be vacated or modified." Davidson, 135 Wn.2d at 118 (citations omitted). We will not review "the evidence before the arbitrator nor the merits of the case." Beroth v. Appollo Coll., Inc., 135 Wn. App. 551, 559, 145 P.3d 386 (2006); Davidson, 135 Wn.2d at 119. "[A]n appellate court's inquiry into an arbitrator's award is limited to that of the court which confirmed, vacated, modified or corrected that award. Thus, in the case of an appeal from an arbitrator's award, an appellate court is strictly proscribed from the traditional full review." Barnett v. Hicks, 119 Wn.2d 151, 157, 829 P.2d 1087 (1992) (citations omitted).
King now asks us to go beyond the face of the arbitration award and determine that the parties intended to read paragraph 11 out of the Contract. This would leave Hudson Company without remedy for its fees both under RCW 60.04.181 and paragraph 11 of the Contract. But the face of the arbitration award does not exhibit an erroneous or mistaken rule of law.
We are not inclined to interpret the Contract contrary to the conduct of the complaining party. The parties' intent "may be discovered not only from the actual language of the agreement but also from 'viewing the contract as a whole, the subject matter and objective of the contract, . . . the subsequent acts and conduct of the parties to the contract, and the reasonableness of respective interpretations advocated by the parties.'" Tanner Elec. Coop. v. Puget Sound Power and Light, 128 Wn.2d 656, 674, 911 P.2d 1301 (1996) (quoting Scott Galvanizing, Inc. v. Northwest EnviroServices, Inc., 120 Wn.2d 573, 580-81, 844 P.2d 428 (1993)).
Therefore, we hold that the arbitrator did not exceed his authority in awarding fees to Hudson Company based on the Contract language and the trial court did not err in refusing to vacate the arbitration award on this basis.
Hudson Company asks us to sanction King because it alleges that King has made numerous misstatements in his opening brief and that "[t]hey are cumulative, serious, impugn the arbitrator's reputation, waste valuable court resources, result in increased [attorney] fees for Hudson [Company] to have to respond, and are designed to mislead the court with a hope that he confusion will result in a reversal or remand." Br. of Resp't at 27. King neglected to note Hudson Company's argument at the trial court regarding the applicability of former chapter 7.04 RCW. He also may have overzealously characterized the relationship between Logerwell and Dreiling. We choose not to sanction King but, nevertheless, we will not condone repetition of such legal work.
III. Attorney Fees on Appeal
Hudson Company requests attorney fees on appeal, relying on RAP 18.1, which authorizes the award of attorney fees on appeal where "applicable law grants to a party the right to recover reasonable attorney fees or expenses on review." Rules of Appellate Procedure (RAP) 18.1(a). Here, Hudson Company argues that the applicable law is either paragraph 11 of the Contract or RCW 60.04.181. A contract provision awarding attorney fees at trial also authorizes such fees on appeal. Boyd v. Davis, 127 Wn.2d 256, 264, 897 P.2d 1239 (1995). And RCW 60.04.181(3) permits the court to award the prevailing party attorney fees. Based on the Contract and RCW 60.04.181(3), we award Hudson Company reasonable attorney fees and costs in an amount to be determined according to RAP 14 and 18.1 upon Hudson Company's compliance with RAP 18.1.
RAP 14.1(b) provides: "Costs on review are determined and awarded by the appellate court which accepts review and makes the final determination of the case."
We affirm the trial court and award Hudson Company attorney fees on appeal.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J., PENOYAR, J. concur.