Opinion
66313-5-I
04-23-2012
In re the Marriage of DEANNA AIMEE BAILEY, Respondent, v. JOHN DAVIN BAILEY, Appellant.
UNPUBLISHED OPINION
Cox, J.
After agreeing to submit the issues in this marriage dissolution action to a summary arbitration procedure, appellant John Davin Bailey (Davin) moved to vacate the arbitration award on various grounds. He appeals an order denying his motion, arguing that the arbitrator violated his statutory and due process rights, and that he did not knowingly waive those rights. We disagree and affirm.
We adopt the naming conventions of Ms. Bailey for purposes of clarity in this appeal.
On September 9, 2008, Deanna Aimee Bailey (Aimee) filed a petition to dissolve her marriage to Davin. As required by Snohomish County Local Court Rules, the parties engaged in alternative dispute resolution before trial. When that failed, the parties stipulated to binding arbitration. The stipulation provided in part that the case would proceed to "mediation/binding arbitration (pursuant to RCW 7.04A) with Mediator/Arbitrator Lee Tinney . . . Lee Tinney will determine the appropriate procedure for this mediation/binding arbitration process."
At the initial mediation session, the parties signed an "Agreement for Mediation to Arbitration." This agreement addressed Tinney's authority if the mediation failed and arbitration became necessary:
Should the mediated settlement conference fail to fully resolve all disputed issues . . . the parties agree that all remaining disputed issues . . . shall be submitted to Lee B. Tinney to decide as arbitrator per RCW 7.04A. In arbitrating such matter, Lee B. Tinney may consider all evidence and information presented by the parties in the mediation, and any additional information directed by her to be produced.
Clerk's Papers at 69.
The agreement also included an "[i]nformed consent" provision, which stated in part:
Both parties . . . have been informed by their counsel as to their rights and the legal consequences of participating in a mediation-to-arbitration process, and to having an arbitrator decide their . . . case rather than traditional litigation and having a judge decide their . . . case.
Id.
The agreement was signed by the parties and their counsel. The parties immediately engaged in a four-hour mediation, but did not reach an agreement.
By letter dated April 23, 2010, Tinney asked the parties to come to the next mediation session "prepared with their bottom line positions and alternatives." She also requested various materials in the event the next session was unsuccessful and outlined her expectations for arbitration:
In an arbitration, I expect to receive into evidence all the mediation materials and statements of the parties, with the expectation of applying appropriate discretion in weighing the reliability of evidence that would otherwise be inadmissible in court such as hearsay. After the next mediation session, I am not expecting to receive additional documentary evidence or testimony, or to schedule any additional hearing. I am mindful the parties selected the mediation/arbitration process to keep legal costs in check, and I plan to keep that in mind in containing the process. … I will be considering the opening positions of the parties to the mediation process as their arbitration position[s]. . . . I will issue a written arbitration decision/award no later than two weeks after the next mediation session . . . .
Clerk's Papers at 71 (emphasis added).
On May 3, 2010, the parties attended a second unsuccessful mediation session and executed a "CR2A Agreement." The agreement described what would occur in the forthcoming arbitration:
Both parties . . . have previously agreed that all issues not agreed upon in this cause shall be submitted to [Tinney] for binding arbitration in a summary process/decision per RCW 7.04A.
All the documentary information submitted to Lee Tinney as mediator shall be accepted into evidence in the arbitration by her. All the statements of the parties in the mediation sessions shall be considered as testimony and accepted into evidence by Lee Tinney in the arbitration.
Counsel for the parties and the arbitrator shall confer by telephone . . . for the purpose of resolving to what degree the wife shall be permitted to submit additional information in response to information submitted by husband [today]. After that issue is resolved, it is expected that the . . . parties may submit a written closing argument not exceeding four double spaced pages. Other than any such response or closing arguments, neither party shall submit further writings or documents.
Clerk's Papers at 72 (emphasis added).
Both parties and counsel signed this agreement.
Following the agreed telephonic hearing, Tinney issued a discovery order providing in part that Aimee was entitled to "a meaningful opportunity to respond to new information" previously provided by Davin. The order allowed Aimee to obtain and submit an appraisal and house inspection of the marital residence, and roof and well repair estimates. The order denied Aimee's request to depose Davin's appraiser, Lance Biden.
On June 19, 2010, Tinney issued her award, which began by reciting that the matter "came on for summary arbitration under RCW 7.04A.150(b), pursuant to written agreement of the parties." It also summarized the evidence considered:
Because there is no subsection "(b)" to RCW 7.04A.150, we assume the arbitrator intended to reference subsection (2), which expressly authorizes a "summary disposition." Clerk's Papers at 107.
By written agreement, the Arbitrator considered evidence consisting of the documents and statements of the parties at the two mediation sessions on April 22, 2010 and May 3, 2010, additional valuation and other information authorized by the arbitrator, and written closing argument on June 14, 2010.
Id.
On August 25, 2010, Davin moved to vacate the award, arguing that "[t]he method by which the arbitration was conducted violated [his] right to confront witnesses." In an attached affidavit, Davin alleged that because the parties used the caucus method of mediation, they were in separate rooms during that process and were not privy to each other's statements to the arbitrator. He also alleged that he did not understand what would happen at the arbitration and "assumed" he would testify and be allowed cross-examination. On November 2, 2010, the superior court denied the motion to vacate on the ground that Davin failed to satisfy any of the bases for vacation listed in RCW 7.04A.230. The court confirmed the award and awarded Aimee $1,500 in attorney fees under RCW 7.04A.250(3).
Davin appeals.
CONFIRMATION OF ARBITRATION AWARD
Davin contends the superior court erred in denying his motion to vacate the arbitration award. He claims the arbitrator violated statutory requirements for arbitration proceedings and principles of due process. We review a trial court's decision to confirm or vacate an arbitration award de novo. For the reasons set forth below, we conclude the court did not err in denying Davin's motion.
Fid. Fed. Bank, FSB v. Durga Ma Corp., 386 F.3d 1306, 1311 (9th Cir. 2004).
Washington law strongly favors the finality of arbitration awards and severely restricts the scope of judicial review. A court may disturb an award only on the narrow grounds listed in RCW 7.04A.230 and only when those grounds appear on the face of the award. In pertinent part, RCW 7.04A.230(1) provides that a court shall vacate an award if:
Davidson v. Hensen, 135 Wn.2d 112, 118-19, 954 P.2d 1327 (1998).
Westmark Properties, Inc. v. McGuire, 53 Wn.App. 400, 402, 766 P.2d 1146 (1989).
(b) There was:
(iii) Misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding;
(c) An arbitrator . . . refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to RCW 7.04A.150, so as to prejudice substantially the rights of a party to the arbitration proceeding . . . .RCW 7.04A.230. Subsection (c) provides relief if the arbitration violated RCW 7.04A.150 and caused substantial prejudice. RCW 7.04A.150 provides in part:
(1) The arbitrator may conduct the arbitration in such manner as the arbitrator considers appropriate so as to aid in the fair and expeditious disposition of the proceeding. The authority conferred upon the arbitrator includes the power to hold conferences with the parties to the arbitration proceeding before the hearing and to determine the admissibility, relevance, materiality, and weight of any evidence.
(2) The arbitrator may decide a request for summary disposition of a claim or particular issue by agreement of all interested parties or upon request of one party to the arbitration proceeding if that party gives notice to all other parties to the arbitration proceeding and the other parties have a reasonable opportunity to respond.
(3) The arbitrator shall set a time and place for a hearing and give notice of the hearing not less than five days before the hearing. Unless a party to the arbitration proceeding interposes an objection to lack of or insufficiency of notice not later than the commencement of the hearing, the party's appearance at the hearing waives the objection. . . .
(4) If an arbitrator orders a hearing under subsection (3) of this section, the parties to the arbitration proceeding are entitled to be heard, to present evidence material to the controversy, and to cross-examine witnesses appearing at the hearing.
(Emphasis added.)
Davin contends his arbitration violated the emphasized portions of RCW 7.04A.230 and .150 because the arbitrator did not hold a full hearing, disclose all the evidence presented in the mediation, allow cross-examination of Aimee's expert, or allow him to fully respond to Aimee's evidence. He concedes that the parties' CR2A agreement expressly called for a "summary process/decision" that limited the evidence and procedures for arbitration. He also does not dispute that a summary arbitration process is authorized by RCW 7.04A.150(2) and that any rights or procedures that parties may have at arbitration can be waived.He argues, however, that he did not waive his "right to present [rebuttal] evidence" or his "right to cross-examine" witnesses because any waiver was not "knowingly and intelligently" made. Specifically, he claims he could not knowingly waive his rights because he had "no knowledge as to what was said or produced during the mediation session by [Aimee]." We disagree.
See e.g., ERA Sun River Realty v. Tri City Ass'n of Realtors, 103 Wn.App. 955, 959, 14 P.3d 890 (2000) (rights and procedures in arbitration, including right to present evidence, can be waived); Harvey v. University of Washington, 118 Wn.App. 315, 320-23, 76 P.3d 276 (2003) (parties may waive rights conferred by law, including right to appeal arbitration award, if waiver is knowing and voluntary).
Even assuming Davin had such rights, the record amply demonstrates that he knowingly and intelligently waived them. At the outset of the mediation-to-arbitration proceedings, the parties agreed that arbitrator Tinney would "determine the appropriate procedure" for the arbitration and would "consider all evidence and information presented by the parties in the mediation, and any additional information directed by her to be produced." Davin acknowledged that his counsel had informed him of the "rights and legal consequences of participating in a mediation-to-arbitration process." Following these agreements, but prior to execution of the CR2A agreement, Tinney informed the parties by letter that, for purposes of the arbitration, she was "not expecting to receive additional documentary evidence or testimony, or to schedule any additional hearing . . . ." Shortly thereafter, the parties executed the CR2A agreement authorizing a "summary" arbitration process.
Significantly, Davin signed the CR2A agreement after participating in the mediation and after previously agreeing that the arbitrator could "consider all evidence and information presented by the parties in the mediation . . . ." He thus agreed to the summary arbitration procedure knowing that the arbitrator could rely on statements or information that he was not privy to. He cannot claim his waiver is undermined by a circumstance (i.e., ignorance of what the other party said or presented in the mediation) he was aware of when he executed the agreement waiving his rights. In short, the rights Davin claims he was denied were knowingly and intentionally waived.
(Emphasis added.)
Davin notes that the parties mediation to arbitration agreement waived confidentiality of mediation disclosures "if this matter is resolved by arbitration, to the extent information is considered by the mediator/arbitrator or identified as a basis for the arbitration decision." Clerk's Papers at 87. He does not argue, however, that the provision required the arbitrator to disclose previously confidential information prior to her decision.
See Puget Sound Bridge & Dredging Co. v. Lake Washington Shipyards, 1 Wn.2d 401, 410-11, 96 P.2d 257 (1939) (rights in arbitration may be expressly or implicitly waived, and where parties submitted themselves "to ex parte examination without insisting that the other be present", they would not "be heard to say that this method of procedure was contrary to the statute or the agreement, or was prejudicial to [their] rights."); Kempf v. Puryear, 87 Wn.App. 390, 393, 942 P.2d 375 (1997) (where party complained that arbitrators refused to hear evidence, refused cross-examination, did not swear witnesses, and had ex parte contact with both parties, vacation of award was not warranted because the party participated in the procedures without objection).
Cf. Adler v. Fred Lind Manor, 153 Wn.2d 331, 360-61, 103 P.3d 773 (2004) (agreement to arbitrate waives right to jury trial by implication).
Davin also argues that even if the CR2A agreement validly waived his rights, a new waiver was necessary following the telephonic hearing regarding what Aimee could submit in response to Davin's new appraisal evidence. But again, Davin knew when he signed the CR2A agreement authorizing a summary procedure that the court planned to hold the telephonic hearing. Nothing in the agreement indicated that the summary procedures would not apply to that hearing or that Davin reserved the right to request cross-examination or submit rebuttal testimony at the hearing. Accordingly, no new waiver was necessary.
ATTORNEY FEES
Aimee requests attorney fees on appeal, citing RAP 18.9 (fees for frivolous appeal), RCW 26.09.140 (fees in dissolution action), and RCW 7.04A.250(3) (prevailing party in post-arbitration proceedings). The trial court awarded Aimee fees under RCW 7.04A.250(3). We award her fees under that provision as well, subject to her compliance with RAP 18.1.
We affirm the order confirming the award.