| ACF Property Mgmt., Inc. v. Chaussee |
| 69 Wn. App. 913 (1993) |
| Instructors note: Footnotes and some citations omitted. |
Webster, Chief Judge.
Dean Chaussee, several of his family members, and the family partnership named Emerald Glen Two Associates (collectively, Chaussee) appeal the trial courts order denying their motion to confirm the arbitrators award entered against ACF Property Management, Inc. (ACF). Chaussee contends that (1) Judge Schindler erroneously interpreted the arbitration clause in the parties agreement to limit arbitration to claims valued at $200,000 or less; (2) Judge Schindler should have confirmed the arbitrators award because ACF failed to prove the prejudice required to vacate the award under RCW 7.04.160(4); (3) ACF waived any right it had to challenge Judge Holmans earlier ruling staying litigation pending arbitration; and (4) ACF was bound by the arbitrators interpretation of the scope of the arbitration clause. ACF cross-appeals, arguing that Judge Holman erred by entering the order staying litigation and Judge Schindler erred by refusing to expressly vacate the arbitrators award. We affirm.
In July 1989, ACF exercised its option to purchase Emerald Glen Two Associates, a Washington partnership owned by Chaussee. Chaussee had created the partnership in order to build an apartment complex in a 2-phased construction project. ACFs purchase involved two separate agreements, one for each phase of construction, but only the Phase II agreement is pertinent to this appeal.
Pursuant to that agreement, ACF paid Chaussee $150,000 and placed another $250,000 in escrow. That total amount of $400,000 was intended to serve as liquidated damages if ACF failed to purchase the property as agreed. Once the Phase II construction was complete, ACF would make an initial down payment and the parties would take various steps to close the transaction. Construction would be deemed complete when, among other things, each partys architect certified that the project was substantially completed. The Phase II agreement also included an arbitration clause which read in pertinent part:
All claims and counterclaims between the parties arising out of or relating to a dispute as to the date or fact of final completion of the lmprovements or any portion thereof, including disputes relating to the completion of construction according to the Plans and Specifications, will be decided by arbitration.... All demands for arbitration and all answering statements thereto which include any monetary claim must contain a statement that the total sum or value in controversy as alleged by the party making such demand or answering statement is not more than TWO HUNDRED THOUSAND DOLLARS ($200,000), exclusive of interest and costs. The arbitrators will not have jurisdiction, power or authority to consider, to make findings, except in denial of their own jurisdiction, or to render a monetary award in response to any claim against any party in excess of such amount. The arbitrators shall have no jurisdiction to hear any claim for specific performance or injunctive relief or any claim concerning the title to the Property and/or to the Improvements.
In July 1990, Chaussees architect issued his certificate of substantial completion, but Chaussee allegedly was unable to determine from ACF whether its architects had inspected the construction project or whether they intended to issue their certificate. Consequently, on August 9, 1990, Chaussees attorney wrote to ACF and demanded that the transaction be closed on August 20, 1990. ACF refused to close the deal, claiming that the construction was not complete and that Chaussee had repudiated the contract by the August 9 letter.
Subsequently, ACF sued Chaussee in superior court for repudiating the contract and sought repayment of the $150,000 it initially paid Chaussee, the $250,000 held in escrow, and approximately $52,000 also held in escrow for various change orders. ACF also sought additional damages of more than $2 million flowing from Chaussees alleged breach of contract. Chaussee answered ACFs complaint and, pursuant to RCW 7.04.030, filed a motion to stay the legal proceedings pending arbitration. ACF opposed that motion, arguing that the arbitration clause in the parties contract limited arbitrable matters to claims of not more than $200,000.
On November 6, 1990, Judge Holman granted Chaussees motion and entered the following findings:
2.2 Paragraph 5.3 of the Agreement contains an arbitration clause. This clause covers all claims and counterclaims relating to completion of the Improvements described in the Agreement.
2.3 Defendants contend, and plaintiffs in their memorandum in support of summary judgment admit, that the issue in the pending summary judgment motion involves claims arising out of and relating to the completion of the Improvements.
2.4 Final completion of the Improvements is an issue in this case.
Judge Holmans conclusions were as follows:
3.1 The arbitration clause in the Agreement is valid and binding on the parties.
3.2 There is an issue involved in the instant action which is referrable to arbitration under the terms of the Agreement.
3.3 The issues raised by the plaintiffs in their proceedings and their motion for summary judgment are appropriate under the Agreement for submission to arbitration.
Immediately following entry of Judge Holmans order, ACF filed a demand for arbitration. Chaussee moved for an order striking the arbitration demand because it did not comply with the requirement of the arbitration clause that
[a]ll demands for arbitration and all answering statements thereto which include any monetary claim must contain a statement that the total sum or value in controversy as alleged by the party making such demand or answering statement is not more than TWO HUNDRED THOUSAND DOLLARS ($200,000), exclusive of interest and costs.
Chaussee alternatively requested that the court enter an order limiting ACFs damages to $200,000 if it prevailed at arbitration. Judge Dore denied Chaussees motion and arbitration proceeded.
A panel of three arbitrators initially considered the scope of the arbitration clause. In a letter to the arbitrators, ACF objected to arbitration on the ground that the arbitration clause in the Phase II agreement limited arbitrable matters to claims not exceeding $200,000. ACF nevertheless asked the arbitrators to find that damages in the matter exceeded $200,000 and to refer the issue of damages to the superior court. The arbitrators ultimately interpreted the arbitration clause as follows:
(i) the arbitrators have no jurisdiction to award damages in excess of $200,000;
(ii) after ruling on the liability of the parties, if the arbitrators find that the actual damages exceed $200,000, they shall award damages up to $200,000 and shall refer the action back to the King County Superior Court which can award any damages in excess of $200,000; and
(iii) the arbitration clause does not contain a $200,000 limit or cap on damages.
On July 9, 1991, after 7 days of hearings, the arbitrators concluded that Chaussee had not repudiated the contract. They awarded him $200,000, noting that their jurisdiction prohibited them from awarding more than that amount. In their opinion and award, the arbitrators asked the Superior Court to enter judgment for the remaining amount of liquidated damages pursuant to the contract ($200,000), plus the money held in escrow for the change orders. The arbitrators also awarded Chaussee attorney fees and costs of approximately $100,000.
In September 1991, Chaussee filed a motion, which ACF opposed, asking the Superior Court to confirm the arbitrators award. Judge Schindler denied the motion on the ground that the arbitration clause precluded arbitration for claims valued at more than $200,000 and Judge Holman erred by holding otherwise. Judge Schindler consequently ordered the parties to schedule a trial date. In addition, without comment, Judge Schindler crossed out language in ACFs proposed order that would have expressly vacated the arbitrators award and subsequent order. Chaussees motion for reconsideration was denied. He now appeals Judge Schindlers order, and ACF cross-appeals.
The key issue before us is whether Judge Schindler erred by refusing to confirm the arbitrators award. Chaussee contends that the award should have been confirmed under RCW 7.04.150 because there was no statutory basis for refusing to confirm it.
In Washington, arbitration depends for its existence and for its jurisdiction upon the parties having contracted to submit to it, and upon the arbitration statute [RCW 7.04]. Thorgaard Plumbing & Heating Co. v. King County, 71 Wn. 2d 126, 132, 426 P.2d 828 (1967). In addition to governing arbitration proceedings, RCW 7.04 governs superior court and appellate court review of those proceedings. Barnett v. Hicks, 119 Wn. 2d 151, 154, 829 P.2d 1087 (1992). A superior court has the limited power of either confirming, vacating, modifying, or correcting an arbitration award as set forth in RCW 7.04.150-.170. Barnett at 156. Appellate court review of an arbitration award is limited to that of the court which confirmed, vacated, modified or corrected that award. Barnett at 157. Further, judicial scrutiny of an arbitration award does not include review of the arbitrators decision on the merits. Westmark Properties, Inc. v. McGuire, 53 Wn. App. 400, 402, 766 P.2d 1146 (1989).
Although public policy strongly favors arbitration as a remedy for settling disputes (see, e.g., Detweiler v. J. C. Penney Cas. Ins. Co., 110 Wn. 2d 99, 112-13, 751 P.2d 282 (1988); Herzog v. Foster & Marshall, Inc., 56 Wn. App. 437, 443, 783 P.2d 1124 (1989)), arbitration should not be invoked to resolve disputes that the parties have not agreed to arbitrate. King Cy. v. Boeing Co., 18 Wn. App. 595, 603, 570 P.2d 713 (1977). To the contrary,
[a]n agreement for the submission of a dispute to arbitration defines and limits the issues to be decided. The authority of the arbitrator is wholly dependent upon the terms of the agreement of submission. The arbitration award must concern only those matters included within the agreement for submission and must not exceed the powers established by the submission.
([Emphasis] ours.) Sullivan v. Great Am. Ins. Co., 23 Wn. App. 242, 246, 594 P.2d 454 (1979). ...
Turning to the facts of the present case, we must initially decide whether Judge Schindler correctly interpreted the parties arbitration clause to preclude arbitration of the issues raised by ACF. See Local Union 77, Intl Bhd. of Elec. Workers v. PUD 1, 40 Wn. App. 61, 63 n.2, 696 P.2d 1264 (1985) (a reviewing court must make an independent determination of whether an issue is arbitrable because arbitrability is a matter of law). Although the first sentence of the arbitration clause broadly purports to require arbitration for [a]ll claims arising out of or relating to final completion of the construction, the clause also states that [t]he arbitrators will not have jurisdiction, power or authority to consider ... any claim against any party in excess of [$200,000]. ... Thus, the words [a]ll claims in the first sentence are qualified by the subsequent language of the clause.
Because the issues ACF presented involved alleged damages of far more than $200,000, Judge Schindler correctly held that the arbitrators had no authority under the parties agreement to consider the issues submitted to arbitration. Consequently, Judge Holman erred by granting Chaussees motion to stay the litigation. RCW 7.04.030 authorizes a trial court to grant a motion to stay an action pending arbitration, but only upon being satisfied that any issue involved in such action or proceeding is referable to arbitration under [the arbitration agreement]. The issues decided in this arbitration were clearly not referable to arbitration under the parties agreement.
Because the arbitrators had no authority under the parties agreement to consider the issues raised in the arbitration, the arbitrators award must be deemed void. See Thorgaard at 132 (arbitration in Washington depends for its existence and for its jurisdiction upon the parties having contracted to submit to it, and upon the arbitration statute ([emphasis] ours)); Sullivan at 246 ([an] arbitration award must concern only those matters included within the agreement for submission and must not exceed the powers established by the submission). A court has no jurisdiction to enter a void judgment and, likewise, has no jurisdiction to confirm a void arbitration award. As RCW 7.04.150 provides:
At any time within one year after the award is made, ... any party to the arbitration may apply to the court for an order confirming the award, and the court shall grant such an order unless the award is beyond the jurisdiction of the court, or is vacated, modified, or corrected, as provided in RCW 7.04.160 and 7.04.170.
([Emphasis] ours.) Under the facts of this case, Judge Schindler correctly refused to confirm the arbitrators award.
Although Chaussee argues that ACF waived any right it had to challenge Judge Holmans order, we disagree. ACF objected to Chaussees motion to stay the litigation pending arbitration and, upon being compelled to arbitrate, specifically challenged the arbitrators power to decide the issues presented. The only other option ACF could have exercised would have been to seek discretionary review of Judge Holmans order.... While seeking discretionary review may have resulted in the reversal of Judge Holmans award, which in turn would have prevented the parties from participating in needless arbitration, we cannot now guess at how a panel of judges actually would have ruled on a motion for discretionary review.
Regardless, ACF was not compelled to seek such review. According to Teufel Constr. Co. v. American Arbitration Assn, 3 Wn. App. 24, 27, 472 P.2d 572 (1970), ACF was assured of the opportunity to challenge rulings that were not final and appealable orders entered prior to arbitration. See also All-Rite Contracting Co. v. Omey, 27 Wn. 2d 898, 900-01, 181 P.2d 636 (1947). In Teufel, the court considered facts similar to those in the present case. There, the appellants sought an order from the trial court staying arbitration of the parties dispute on the ground that the dispute was not subject to arbitration under the parties contracts. The trial court denied that motion and granted the opposing partys motion to compel arbitration.
On appeal, the appellants argued that if the trial courts order were affirmed, they would be precluded from later challenging that courts decision that the issues were arbitrable. Teufel at 25. The Court of Appeals affirmed, citing the holding of All-Rite that an order compelling arbitration is not final and therefore not appealable. However, the court also stated that
[o]n appeal, appellants may challenge the jurisdiction of the trial court to entertain the arbitration proceedings for lack of a binding arbitration agreement or because the disputes are not arbitrable under the agreement.
([Emphasis] ours.) Teufel at 27.
In a case like the present one, where ACF objected to the arbitration but was nevertheless compelled to submit issues to arbitration that were not arbitrable under the parties agreement, ACF was entitled to challenge the validity of the arbitrators award when Chaussee moved to have it confirmed. See RCW 7.04.150; Teufel at 27; see also W.A. Botting Plumbing & Heating Co. v. Constructors-Pamco, 47 Wn. App. 681, 686 n.3, 736 P.2d 1100 (1987) (in dictum, the court noted that a party compelled to submit the issue of jurisdiction to arbitration, as opposed to submitting that issue voluntarily, may challenge jurisdiction in a subsequent motion to vacate or modify). Once the trial court determines that an arbitration award is void and, thus, beyond its jurisdiction to confirm, the courts inquiry ends. RCW 7.04.150 does not require the court to further determine whether any grounds exist for vacating, modifying, or correcting the award. See RCW 7.04.150 (the court shall grant an order confirming the award unless the award is beyond the jurisdiction of the court, or is vacated, modified, or corrected ([emphasis] ours)). Hence, Judge Schindler did not err by refusing to vacate the award.
Having decided that the initial order staying the litigation pending arbitration was erroneous, we affirm the trial courts judgment denying the motion to confirm the arbitrators award and denying the motion to vacate.
Baker and Kennedy, JJ., concur.
Review denied by Supreme Court November 3, 1993.
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