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DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
| Docket Number: |
66313-5 |
| Title of Case: |
In Re The Marriage Of: Deanna Aimee Bailey, Res. And John Davin Bailey, App. |
| File Date: |
04/23/2012 |
SOURCE OF APPEAL
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| Appeal from Snohomish Superior Court |
| Docket No: | 08-3-02262-7 |
| Judgment or order under review |
| Date filed: | 11/02/2010 |
| Judge signing: | Honorable Foreign Judge |
JUDGES
------
| Authored by | Ronald Cox |
| Concurring: | Michael S. Spearman |
| Marlin Appelwick |
COUNSEL OF RECORD
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Counsel for Appellant(s) |
| | Steven Brian Shea |
| | Attorney at Law |
| | Po Box 1269 |
| | Everett, WA, 98206-1269 |
Counsel for Respondent(s) |
| | Lorna Leal Bigsby |
| | Lorna L. Bigsby, PLLC |
| | 2918 Colby Ave Ste 201a |
| | Everett, WA, 98201-4077 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
)
In re the Marriage of ) No. 66313-5-I
)
DEANNA AIMEE BAILEY, ) DIVISION ONE
)
Respondent, )
)
and )
)
JOHN DAVIN BAILEY, ) UNPUBLISHED
)
Appellant. ) FILED: April 23, 2012
)
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.1 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.
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
1 We adopt the naming conventions of Ms. Bailey for purposes of clarity in this
appeal.
No. 66313-5-I/2
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.[2]
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.[3]
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
2 Clerk's Papers at 69.
3 Id.
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No. 66313-5-I/3
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 . . . .[4]
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
4 Clerk's Papers at 71 (emphasis added).
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No. 66313-5-I/4
shall submit further writings or documents.[5]
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."6 It also summarized the evidence
considered:
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.[7]
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
5 Clerk's Papers at 72 (emphasis added).
6 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.
7 Id.
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No. 66313-5-I/5
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.8 For the reasons set
forth below, we conclude the court did not err in denying Davin's motion.
Washington law strongly favors the finality of arbitration awards and
severely restricts the scope of judicial review.9 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.10 In pertinent part, RCW
8 Fid. Fed. Bank, FSB v. Durga Ma Corp., 386 F.3d 1306, 1311 (9th Cir. 2004).
9 Davidson v. Hensen, 135 Wn.2d 112, 118-19, 954 P.2d 1327 (1998).
10 Westmark Properties, Inc. v. McGuire, 53 Wn. App. 400, 402, 766 P.2d 1146
(1989).
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No. 66313-5-I/6
7.04A.230(1) provides that a court shall vacate an award if:
(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
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No. 66313-5-I/7
to cross-examine witnesses appearing at the hearing.[11]
. . .
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.12
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.
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
11 (Emphasis added.)
12 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).
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No. 66313-5-I/8
"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 . . . ."13 He
thus agreed to the summary arbitration procedure knowing that the arbitrator
could rely on statements or information that he was not privy to.14 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
13 (Emphasis added.)
14 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.
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No. 66313-5-I/9
executed the agreement waiving his rights.15 In short, the rights Davin claims
he
was denied were knowingly and intentionally waived.16
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
15 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).
16 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).
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No. 66313-5-I/10
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.
WE CONCUR:
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