Moore v. Olson , 351 P.3d 1066 ( 2015 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
AIMEE L. MOORE, )
) Supreme Court No. S-15281
Appellant, )
) Superior Court No. 3AN-13-06990 CI
v. )
) OPINION
DONALD C. OLSON, DONALD )
OLSON ENTERPRISES, INC., OLSON ) No. 7017 – July 2, 2015
VENTURES, LLC, OLSON AIR )
SERVICE, INC., REINDEER SPIRIT, )
INC., and POLAR EXPRESS )
AIRWAYS, INC., )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Andrew Guidi, Judge.
Appearances: William F. Brattain, Baker Brattain, LLC,
Anchorage, for Appellant. Robert J. Gunther, Law Office of
Robert J. Gunther, Anchorage, for Appellees.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
WINFREE, Justice.
I. INTRODUCTION
In this case we are asked to review a superior court’s decision confirming
an arbitration award. In the superior court the appellant challenged procedural decisions
made by the arbitrator; before us the appellant challenges both procedural and
substantive decisions made by the superior court. Applying the appropriate deferential
standards of review, we affirm the superior court’s decision confirming the arbitration
award.
II. FACTS AND PROCEEDINGS
A. Facts
Donald Olson and Aimee Moore met in 1995. Between 1995 and 2004
they had business and personal relationships. The business relationship began with
Donald training Aimee to fly helicopters in exchange for Aimee’s work for Donald and
his businesses. Eventually Aimee managed Donald’s businesses, and they agreed that
she would receive a share of business profits. Aimee and Donald dispute the nature of
their personal relationship: Aimee characterizes the relationship as a cohabative
domestic partnership; Donald asserts the relationship was not a domestic partnership.1
Aimee terminated the personal relationship in July 2004. In December
2004 Aimee and Donald signed an agreement “related to the deferred compensation
owed Aimee . . . for work performed during the period January 1996 through 2004.” In
November 2005, after negotiating for more than a year, Aimee and Donald signed a final
settlement agreement to end their business relationship.
During settlement negotiations and mediation Aimee chose not to have a
professional participate on her behalf, but she did consult attorneys and accountants.
Donald agreed to transfer to Aimee $350,000 cash as well as real property valued at
$150,000. Donald, on behalf of his businesses, also agreed to transfer to Aimee half of
1
We have explained that a personal relationship is a domestic partnership
when the parties “intended to share in the fruits of their relationship as though married,
justifying an equal division of their property.” Reed v. Parrish, 286 P.3d 1054, 1057
(Alaska 2012) (citing Julsen v. Julsen, 741 P.2d 642, 645 (Alaska 1987)).
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the net proceeds from the rents and sale of two hangars — for a five-year period — in
an amount up to $300,000. Donald agreed to make a good faith effort to market and sell
the hangars during the five-year period. In return Aimee agreed to pay half the operating
expenses of each hangar prior to sale, resign from the businesses, execute a mutual
release of claims, and maintain confidentiality.
The settlement agreement gave either party the right to arbitrate any
disputes and required that the losing party pay “reasonable actual attorney[’s] fees.” The
agreement included a provision that “[t]he decision and award of the arbitrator shall be
final and binding upon the parties and non-appealable,” and further provided:
In the event either party shall be in default in the performance
of any of its obligations under this Agreement and an action
shall be brought for the enforcement thereof, the defaulting
party shall pay to the other all the costs incurred therefor,
including reasonable actual attorney[’s] fees.
Donald immediately transferred the cash and the real property to Aimee,
fulfilling his personal obligation under the settlement agreement. But Aimee continued
to have some involvement with the hangars and Donald’s businesses, including some
interactions with Robert Gunther, an attorney who began representing the businesses in
2007. The interactions resulted from (1) litigation against a third party and (2) lease
negotiations with a potential hangar lessee.
The hangars were not sold by November 2010. But during the five years
the businesses paid Aimee rents totaling about $285,000, so Aimee had received all but
about $15,000 of the agreed upon $300,000. During that same period Aimee reimbursed
the businesses for half of the hangar expenses, including $4,500 for Gunther’s legal fees.
In February 2012, shortly after Aimee initiated arbitration proceedings, the businesses
paid Aimee the remaining amount due on the agreed upon $300,000 and also returned
the money Aimee had paid for half of the hangar expenses.
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B. Proceedings
Aimee initiated arbitration against Donald, but not his businesses, in
January 2012. Aimee asserted:
Pursuant to the property settlement of the parties’ long
term cohabitation and partnership, . . . [Donald] had an
obligation to pay [Aimee] approximately $300,000 through
the sale of two specific properties.
[Donald] breached this agreement in some or all of the
following ways: (1) he failed to promptly sell the properties
and fund the balance of the $300,000 payment; (2) he
continued to require [Aimee’s] involvement in the
management of the property by asking her to meet and
negotiate with prospective tenants and to deal with tenant
issues; and (3) by asking for additional contributions to
maintain and improve the property. To date, [Donald] has
not attempted to sell the properties despite his promise to do
so. Because [Donald] committed a breach of the contract, the
contract should either be rescinded in its entirety and the
parties restored to their respective positions status quo ante
or, in the alternative, [Aimee] should receive an amount equal
to the present value of the property at the time of sale or as
otherwise determined as being just and equitable, less interim
payments received by her prior to notice of the breach.
Charles Kasmar entered an appearance as Donald’s attorney, and an arbitration hearing
was scheduled for December 2012.
In early November 2012 Kasmar emailed Aimee’s attorney, William
Brattain, explaining that “Robert Gunther will be entering an appearance on behalf of
[Donald’s businesses] when they are added as party respondents.” Kasmar, Gunther, and
Brattain stipulated to the addition of Donald’s businesses and Gunther’s representation
of the businesses in the arbitration. They also agreed to arbitration scheduling and
deadlines, including a December 3 deadline for motions. Gunther entered his appearance
in the arbitration on December 3.
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In mid-January 2013 Aimee moved to continue the arbitration proceedings,
arguing that she needed more time to prepare because deposition testimony had
complicated the scope of the arbitration and because the hangars were not yet
professionally appraised. Aimee also moved to disqualify Gunther, arguing that he had
a conflict of interest because he had represented Aimee in a substantially related matter
— the hangar lease negotiations — and arguing that Gunther was a vital witness for the
arbitration. Donald and the businesses opposed Aimee’s motions. Gunther submitted
an affidavit asserting that he had “never entered into an express formal, or an implied,
agreement to represent Aimee.”
The arbitrator denied the motion to continue, concluding that the motion
was untimely filed without justification. The arbitrator found that Aimee knew from the
outset of arbitration that appraising the hangars might be necessary. The arbitrator also
found that “a continuance of the arbitration would delay the final resolution of the
dispute between the parties and would defeat the primary benefit of arbitration of
expeditiously and inexpensively resolv[ing] the dispute between the parties.”
The arbitrator also denied Aimee’s motion to disqualify Gunther,
concluding that the motion was untimely filed without justification. The arbitrator noted
that Aimee knew in November 2012 that Gunther had become involved in the arbitration
proceedings; Aimee did not support her motion with an affidavit and only filed an
affidavit with her reply; the facts did not support finding an attorney-client relationship
between Aimee and Gunther; and the alleged representation was not in a substantially
related matter. The arbitrator finally found that “[t]he timing of the motion to disqualify
Gunther from these proceedings is suspect.”
The parties appeared before the arbitrator in February 2013. The arbitrator
ultimately agreed with Donald and his businesses, concluding that the parties’ personal
relationship was not a domestic partnership and finding that Donald and the businesses
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had not materially breached the settlement agreement. The arbitrator ruled in Donald’s
and the businesses’ favor and awarded them reasonable prevailing party costs and
attorney’s fees.
Donald and the businesses applied in superior court to confirm the
arbitration award. Aimee sought to vacate the award, arguing that: (1) “[b]y not
recusing Mr. Gunther, the Arbitrator substantially prejudiced [Aimee’s] rights, and thus
under A.S. 09.43.500, the Arbitration must be vacated”; and (2) “[the] refusal by the
Arbitrator to continue the hearing . . . constituted a substantial prejudice of [Aimee’s]
rights, and thus under A.S. 09.43.500, this court should vacate, rather than confirm, the
decision of the Arbitrator.” Aimee also moved to disqualify Gunther from the superior
court proceedings. The court denied Aimee’s motion to disqualify Gunther, denied
Aimee’s vacatur request, and confirmed the arbitration award. The court also granted
Donald’s and the businesses’ motions for full reasonable costs and attorney’s fees,
finding that the settlement agreement mandated such an award, Alaska Civil Rule 82
supported a full reasonable fee award, and that Donald’s and the businesses’ actual costs
and fees were reasonable.
Aimee appeals, arguing that the superior court erred and violated her right
to due process by denying her disqualification motion, confirming the arbitration award,
and awarding attorney’s fees, all without holding a hearing.
III. STANDARD OF REVIEW
“A superior court’s decision reviewing an arbitration award is subject to de
novo review.”2 A “decision concerning a motion to disqualify opposing counsel will
2
Johnson v. Aleut Corp., 307 P.3d 942, 947 (Alaska 2013) (citing Kinn v.
Alaska Sales & Serv., Inc., 144 P.3d 474, 482 (Alaska 2006)). Accord McAlpine v.
Priddle, 321 P.3d 345, 348 (Alaska 2014) (“We ‘review de novo the superior court’s
(continued...)
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only be reversed when it constitutes an abuse of discretion.”3 A ruling that an underlying
agreement required an award of actual reasonable attorney’s fees is “reviewed under the
de novo standard because it involves contract interpretation.”4 “Questions of due process
present constitutional issues that we review de novo.”5
An “arbitrator’s findings of both fact and law . . . receive great deference.”6
Generally “the arbitrator’s findings of fact are unreviewable, even in the case of gross
error,”7 and “judicial review . . . of an arbitrator’s decision is limited to issues of
arbitrability.”8 “[I]n order to vacate [an] award based on the arbitrators’ refusal to
continue the arbitration hearing, a litigant must show that the ‘arbitrators committed
gross error’ in determining that a ‘litigant did not show sufficient cause for
2
(...continued)
decision to confirm [an] arbitration award.’ ” (alteration in original) (quoting State v.
Pub. Safety Emps. Ass’n, 235 P.3d 197, 201 (Alaska 2010))).
3
Munn v. Bristol Bay Hous. Auth., 777 P.2d 188, 196 (Alaska 1989). Accord
In re Estate of Adkins, 874 P.2d 271, 272-73 (Alaska 1994) (“We review questions of
attorney disqualification under the abuse of discretion standard.”).
4
Marathon Oil Co. v. ARCO Alaska, Inc., 972 P.2d 595, 600 (Alaska 1999)
(citing State v. Arbuckle, 941 P.2d 181, 184 (Alaska 1997)).
5
Grimmett v. Univ. of Alaska, 303 P.3d 482, 487 (Alaska 2013) (citing
James v. State, Dep’t of Corr., 260 P.3d 1046, 1050 (Alaska 2011)).
6
OK Lumber Co. v. Alaska R.R. Corp., 123 P.3d 1076, 1078 (Alaska 2005)
(alteration in original) (quoting Ahtna, Inc. v. Ebasco Constructors, Inc., 894 P.2d 657,
660 (Alaska 1995)).
7
Ahtna, Inc., 894 P.2d at 661 (citing Breeze v. Sims, 778 P.2d 215, 217
(Alaska 1989)); accord McAlpine, 321 P.3d at 349.
8
Ahtna, Inc., 894 P.2d at 661 (quoting Masden v. Univ. of Alaska, 633 P.2d
1374, 1377 (Alaska 1981)).
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postponement.’ ”9 We also have applied the gross error standard of review to other
issues concerning arbitration management.10
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion When It Refused To
Disqualify Gunther From The Confirmation And Vacatur
Proceedings.
During the superior court confirmation and vacatur proceedings Aimee
9
Marathon Oil Co., 972 P.2d at 602 (quoting Ebasco Constructors, Inc. v.
Ahtna, Inc., 932 P.2d 1312, 1316 (Alaska 1997)).
10
See id. (“Because AS 09.43.120(a)(4) deals generally with issues
concerning the management of arbitration, it is logical to adopt the same standard of
review for all alleged violations of this provision.”). We recognize that our decision in
Marathon Oil addressed Alaska’s Uniform Arbitration Act (UAA), and that Aimee and
Donald’s agreement is subject to Alaska’s Revised Uniform Arbitration Act (RUAA).
Ch. 170, §§ 1-2, SLA 2004 (Alaska adopted the RUAA in 2004, and the RUAA governs
arbitration agreements entered into on or after January 1, 2005.); AS 09.43.300-.595.
Donald argues that “[t]he RUAA includes few substantive changes from the original
UAA provisions regarding confirmation and vacatur,” and he suggests “that case law
decided under the UAA is equally applicable to the RUAA; or, at the very least, provides
highly persuasive guidance.”
Donald’s arguments are persuasive. For example, the RUAA and UAA
each mandate vacatur when a party’s continuance request was denied despite a “showing
of sufficient cause for postponement.” See AS 09.43.500(a)(3) (mandating vacatur when
“an arbitrator refused to postpone the hearing on showing of sufficient cause for
postponement, refused to consider evidence material to the controversy, or otherwise
conducted the hearing contrary to AS 09.43.420, so as to prejudice substantially the
rights of a party to the arbitration proceeding”); AS 09.43.120(a)(4) (mandating vacatur
when “the arbitrators refused to postpone the hearing upon sufficient cause being shown
for postponement or refused to hear evidence material to the controversy or otherwise
so conducted the hearing, contrary to the provisions of AS 09.43.050, as to prejudice
substantially the rights of a party”). Because the RUAA did not change or limit the
policies in favor of arbitration, we apply the same deferential review of arbitration
decisions that we applied under the UAA. We thus continue to review arbitration
management decisions for gross error.
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unsuccessfully moved to disqualify Gunther, asserting a conflict of interest and arguing
that she was Gunther’s former client in a substantially related matter. Aimee now argues
that the court erred when it refused to disqualify Gunther.
We have held that
an attorney “may not represent a third party against a former
client where there exists a substantial possibility that
knowledge gained by him in the earlier professional
relationship can be used against the former client, or where
the subject matter of his present undertaking has a substantial
relationship to that of the prior representation.”[11]
This test is incorporated in Alaska Professional Conduct Rule 1.9(a)12 which provides:
A lawyer who has formerly represented a client in a matter
shall not thereafter represent another person in the same or a
substantially related matter in which that person’s interests
are materially adverse to the interests of the former client
unless the former client gives informed consent, confirmed in
writing.
Disqualification therefore is warranted after determining that (1) the party alleging a
conflict of interest is the attorney’s former client and (2) the attorney represented the
former client in a substantially related matter.
Rule 9.1(q) defines “substantially related matters” as “matters: (1) that
involve the same transaction or the same underlying legal dispute, or (2) where there is
a substantial risk that confidential factual information obtained in the prior matter would
materially advance a client’s position in the subsequent matter.” We have explained that
“[t]he substantial relationship test for determining disqualification of an attorney is a
prophylactic rule which obviates the need for the former client to demonstrate that
11
Griffith v. Taylor, 937 P.2d 297, 301 (Alaska 1997) (quoting Aleut Corp.
v. McGarvey, 573 P.2d 473, 474-75 (Alaska 1978)).
12
See id. at 301 n.8.
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confidential information was actually disclosed in the course of the prior
representation.”13 But the former client still has the burden to demonstrate “that the
matters embraced within the pending suit wherein [her] former attorney appears on
behalf of [her] adversary are substantially related to the matters or cause of action
wherein the attorney previously represented [her], the former client.”14
We do not decide whether Aimee is Gunther’s former client because Aimee
fails to establish that the superior court erred when concluding that there was no
substantial relationship between Gunther’s alleged representation and the confirmation
and vacatur proceedings. Aimee argues that “Gunther was [her] lawyer in regard to
selling the two airport properties, and subsequently purported to represent [Donald] in
a case in which [Aimee] was attempting to assert an interest in those same airport
properties.” In the superior court Aimee asserted that she came to Gunther “for
assistance in making key decisions in the leasing, pollution and environmental concerns,
and management of the Barrow hangar property.” Aimee supported her statement with
an affidavit asserting:
I met several times with Mr. Gunther during the five year
period of the Settlement Agreement, with [Donald], to obtain
legal assistance and advice on issues relating to the airport
properties. At the time, and to this day, I believed that I was
consulting with Mr. Gunther as a lawyer in his professional
capacity. At the time I participated proactively in the
meetings, and manifested my intention to seek professional
legal advice from Mr. Gunther. At the time I consulted with
Mr. Gunther I had a legal and equitable interest in the airport
properties, and considered him to be my attorney vis-á-vis
those properties.
13
Id. at 301.
14
Aleut Corp., 573 P.2d at 475 (quoting T.C. Theatre Corp. v. Warner Bros.
Pictures, 113 F. Supp. 265, 268 (S.D.N.Y. 1953)) (internal quotation marks omitted).
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But Aimee fails to demonstrate how her alleged attorney-client relationship
with Gunther, and the matters allegedly discussed, were substantially related to the
superior court confirmation and vacatur proceedings. She does not argue, nor does it
appear from the record, that her alleged participation in the hangar lease negotiations was
related in any way to the legal dispute raised in her allegations that Donald and the
businesses breached the settlement agreement. And Aimee’s superior court claims were
even further removed from her alleged interaction with Gunther — her superior court
arguments were based on the arbitrator’s procedural decisions, not on the leasing,
management, or even sale of the airport properties.
Finally, Aimee fails to establish that there was any “substantial risk that
confidential factual information obtained in the prior matter would materially advance
a client’s position in the subsequent matter.”15 Aimee asserts that the subject matter of
her meetings with Gunther and the subject matter of the arbitration dispute were
identical, i.e., “what needed to be done with two airport properties in which both parties
had an interest.” Aimee does not need to establish that Gunther received confidential
information,16 but she must establish a substantial risk that he did. Aimee fails to explain
why her involvement and interaction with Gunther during lease negotiations with an
outside party created a substantial risk that she had revealed confidential information
relevant to her subsequent application for the superior court to vacate the arbitrator’s
decision based on alleged procedural errors. And Aimee did not establish that her
interactions with Gunther — dealing with unrelated litigation and lease negotiations —
were related to her domestic partnership or breach of contract theories. Because Aimee
failed to satisfy her burden of explaining or establishing a substantial risk that Gunther
15
Alaska R. Prof. Conduct 9.1(q)(2).
16
See Griffith, 937 P.2d at 301.
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received confidential information, the superior court did not abuse its discretion when
denying her disqualification request.
B. The Arbitrator’s Denial Of Aimee’s Disqualification Request Was Not
Gross Error.
Aimee asserts that the arbitrator committed gross error when concluding
that Aimee and Gunther did not have an attorney-client relationship and when
concluding that Aimee did not consult Gunther on a substantially related matter. A
preliminary issue not explicitly raised by the parties is the arbitrator’s authority to
determine whether Gunther had a conflict of interest.17
Courts that have addressed this issue are split. Some courts have held that
attorney disqualification issues are outside arbitrators’ jurisdiction, concluding that
public policy dictates reserving such decisions for courts.18 And it may be inappropriate
17
In her opening brief Aimee asserts that the arbitration award should be
vacated under AS 09.43.500(4). AS 09.43.500(4) provides for vacatur when “an
arbitrator exceeded the arbitrator’s powers.” But Aimee never develops this argument
and never explicitly argues that an arbitrator is not authorized to determine whether a
lawyer has a conflict of interest. And because Aimee is the party who brought the
disqualification issue to the arbitrator; never disputed the arbitrator’s authority to make
this decision; never sought a stay of the proceedings to bring the issue before a superior
court; and has not raised the issue to us, we do nothing more than identify the issue for
future cases.
18
See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Benjamin, 766
N.Y.S.2d 1, 6 (N.Y. App. Div. 2003) (“Another matter ‘intertwined with overriding
public policy considerations’ and therefore beyond the reach of the arbitrators’ discretion
is the disqualification of an attorney from representing a client. . . . [I]ssues of attorney
disqualification involve interpretation and application of the Code of Professional
Responsibility and Disciplinary Rules and cannot be left to the determination of
arbitrators selected by the parties themselves for expertise in the particular industries in
which they are engaged.” (quoting Bidermann Indus. Licensing v. Avmar N.V., 570
N.Y.S.2d 33, 34 (N.Y. App. Div. 1991))); Dean Witter Reynolds, Inc. v. Clements,
(continued...)
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for arbitrators to address disqualification issues because they arguably present
substantive disputes between one party to the arbitration and their alleged former counsel
— a party who has not agreed to arbitrate the dispute.19 Other courts, noting that “[t]he
law provides an opportunity for judicial review of arbitration decisions,” have narrowly
construed the public policy exception,20 concluding that attorney disqualification
decisions are procedural decisions for arbitrators to make consistent with the policy of
encouraging arbitration as a speedy alternative to litigation.21
Donald and Aimee’s settlement agreement provided: “In the event of any
dispute, claim or question arising under this Agreement, or related hereto, . . . . [T]hen
either party shall have the right to submit the matter to the American Arbitration
Association . . . for arbitration under its Commercial Arbitration Rules . . . .” We have
18
(...continued)
O’Neill, Pierce & Nickens, L.L.P., No. H-99-1882, 2000 WL 36098499, at *5 (S.D. Tex.
Sept. 8, 2000) (“[O]verarching policy considerations preclude arbitrators, who are often
non-lawyers, from interpreting and applying the applicable rules of professional conduct
for attorneys.”).
19
Dean Witter Reynolds, Inc., 2000 WL 36098499, at *4 (“[Appellee]
characterizes the disqualification dispute as nothing more than a matter of [one party’s]
choice of counsel in the underlying . . . arbitration. However, at its core, the
disqualification dispute lies between [the alleged client] and [the lawyer], not between
[the parties to the arbitration].”).
20
SOC-SMG, Inc. v. Day & Zimmermann, Inc., No. 5375-VCS, 2010 WL
3634204, at *3 (Del. Ch. Sept. 15, 2010).
21
See, e.g., id. (“Just as a trial judge should deal in the first instance with
alleged discovery abuses or attorney misconduct in cases before her, so should an
arbitration panel.”); Canaan Venture Partners, L.P. v. Salzman, No. CV 950144056S,
1996 WL 62658, at *3 (Conn. Super. Jan. 28, 1996) (“This court will not interfere with
and interrupt the process of arbitration . . . . Furthermore, the public policy exception is
to be construed narrowly, and . . . attorney disqualification is not within the scope of the
exception.”).
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emphasized a “strong [public] policy favoring arbitration and our rule of construction
allowing even ambiguous contract terms to be construed in favor of arbitrability.”22 But
because neither party has ever explicitly argued that the attorney disqualification issue
was not subject to arbitration — thereby tacitly accepting the arbitrator’s jurisdiction to
address the issue — we do not need to decide in this case whether disqualification is an
arbitrable issue.
The arbitrator did not grossly err when denying the disqualification motion.
The arbitrator found that Aimee’s motion was filed well after the deadline for motions
and that Aimee failed to adequately justify her late-filed motion when she knew two
months earlier that Gunther would participate in the arbitration. The arbitrator also
found the timing of Aimee’s disqualification motion “suspect.” On appeal Aimee fails
to argue that either finding was obvious and significant error. Under our deferential
standard of review, these findings alone are sufficient to affirm the arbitrator’s decision
denying the disqualification motion.
Aimee argues that the arbitrator grossly erred when finding no substantial
relationship between Gunther and Aimee’s prior interactions and the issues addressed
in the arbitration. The arbitrator found that Aimee and Gunther “in fact met regarding
the airport properties.” But the arbitrator distinguished (1) Aimee providing “a factual
basis affidavit dealing with issues involved in [a different] litigation,” and (2) discussing
a potential lease of one of the hangar properties, from Aimee and Donald’s settlement
agreement and Aimee’s ownership claims. The arbitrator noted that Aimee:
does not specifically mention nor does she state any
discussion she might have had with Gunther that dealt with
22
Lexington Mktg. Grp., Inc. v. Goldbelt Eagle, LLC, 157 P.3d 470, 478
(Alaska 2007) (citing Univ. of Alaska v. Modern Constr., Inc., 522 P.2d 1132, 1138
(Alaska 1974)).
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any of the issues involved in the Arbitration proceeding. A
careful reading of the affidavits presented makes it clear that
[Aimee’s] contact with Gunther . . . did not involve any of the
issues dealing with the current dispute between the parties in
the Arbitration proceeding.
Aimee correctly asserts that under Alaska law she is not required to show
that confidential information was disclosed in order to disqualify Gunther.23 But the
arbitrator did not mandate a showing of a confidential disclosure. Rather, the arbitrator
noted that Aimee failed to establish that her prior interactions with Gunther addressed
any of the disputed issues in the arbitration. Aimee’s briefs in this appeal and her
citations to the record similarly fail to establish that Aimee’s discussions with Gunther
involved any of the same issues — i.e., the alleged domestic partnership and alleged
breach of the settlement agreement — that the parties disputed in the arbitration.
Because Aimee does not dispute the arbitrator’s finding that her motion was
untimely filed without justification, and because the arbitrator reasonably concluded that
Gunther never consulted with Aimee regarding a substantially related matter, we
conclude that the arbitrator did not grossly err when denying Aimee’s disqualification
motion. We therefore conclude that the superior court correctly ruled that the denial was
insufficient grounds for vacatur.
C. The Arbitrator’s Denial Of Aimee’s Continuance Request Was Not
Gross Error.
Alaska Statute 09.43.500(a)(3) requires vacatur of an arbitration award
when “an arbitrator refused to postpone the hearing on showing of sufficient cause for
postponement, refused to consider evidence material to the controversy, or otherwise
conducted the hearing contrary to AS 09.43.420, so as to prejudice substantially the
rights of a party to the arbitration proceeding.” We have explained that “the party
23
See supra, page 11.
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challenging [an arbitration] award bears the burden of proof,”24 and we have noted that
“[c]ourts have rejected most claims that an arbitration proceeding should be vacated
because of an arbitrator’s refusal to postpone the hearing.”25
Aimee argues that the inclusion of Donald’s businesses in the arbitration
complicated the proceedings. Aimee asserts she showed good cause for postponement
because she needed time to put together a case establishing her domestic partnership
theory or to show that she was owed much more deferred compensation than she had
received. Aimee also argues that the need to appraise the airport properties was good
cause for the continuance because (1) “[t]he gravamen of [Aimee’s] claim [was] that the
airport hangar properties were never properly valued at the time of the negotiations
leading to the Settlement Agreement” and (2) the properties’ value was necessary for the
arbitrator’s determination “whether the Settlement Agreement was breached, was
rescinded, expired, or was never fully integrated in the first place, and what remedy
would be most fair and equitable to the parties.”
When denying Aimee’s motion to continue, the arbitrator noted that the
arbitration had been continued twice before: first, upon the parties’ stipulation the
arbitration had been continued from early December 2012 until late January 2013, and
second, a week after Aimee first moved to continue, before the arbitrator issued a
decision on the continuance motion, the arbitration was continued for two weeks due to
Aimee’s counsel’s illness. The arbitrator’s order denying the continuance also noted that
the gravamen of Aimee’s original claim was an alleged breach of the settlement
agreement, that Aimee sought “half of the . . . fair market value of the two airport
24
City of Fairbanks Mun. Utils. Sys. v. Lees, 705 P.2d 457, 461 (Alaska
1985).
25
Ebasco Constructors, Inc. v. Ahtna, Inc., 932 P.2d 1312, 1316 n.1 (Alaska
1997).
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properties,” and that Aimee’s arbitration notice recognized that “[q]uantification of the
[fair market value] is complex, and likely to be controversial.”
The arbitrator found that Aimee’s motion to continue was “clearly
untimely” and that Aimee failed to advance a “just reason” for the late motion.
Explaining that arbitration helps “resolve disputes privately, promptly, and
economically,” the arbitrator found that “it is clear that [Aimee] knew from the beginning
of this arbitration process that the fair market value of the property was an issue that she
had raised by her pleadings” and that “a continuance of the arbitration would delay the
final resolution of the dispute between the parties and would defeat the primary benefit
of arbitration.”
The arbitrator’s denial did not address Aimee’s assertions that a
continuance was warranted because addition of the businesses complicated the
arbitration and because she needed more time to gather evidence of a domestic
partnership. But none of Aimee’s assertions establish that the arbitrator’s denial of her
continuance request was obvious and significant error. First, the businesses obviously
were necessary parties to the arbitration, and Aimee expressly consented to their addition
and the new arbitration date. Second, in his ultimate decision the arbitrator relied on
evidence in the record reflecting the parties’ views on whether Aimee was due any
additional deferred compensation. Third, when Aimee submitted the dispute to
arbitration asserting a breach of contract, she did not explain that she planned to argue
for a remedy under her domestic partnership theory.
Because the arbitrator soundly justified denying Aimee’s continuance
request, we conclude that the superior court correctly ruled that the denial was
insufficient grounds for vacatur.
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D. The Superior Court Was Not Required To Sua Sponte Conduct An
Evidentiary Hearing.
Aimee did not request an evidentiary hearing during the confirmation and
vacatur proceedings. But she now asserts that the superior court’s failure to sua sponte
conduct an evidentiary hearing was erroneous.
1. No statute requires a sua sponte evidentiary hearing.
Describing the superior court’s role in confirmation and vacatur
proceedings as that of “an intermediate appellate body,” Aimee argues that the statute
providing the superior court’s appellate jurisdiction, AS 22.10.020(d), includes the
requirement to conduct “hearings on appeal.” Aimee then notes that she and Donald
contested facts that were relevant for the superior court’s confirmation and vacatur
decisions. Thus, Aimee concludes that the superior court failed to hold “a hearing to see
whether in fact criteria from AS 09.43.500 justified vacation . . . . [A]nd its failure to
conduct any hearing whatsoever before simply confirming the award derogated its duty
to properly review the arbitration’s compliance with AS 09.43.500.”
Aimee incorrectly classifies the superior court’s action in this case as
intermediate appellate review. Alaska Statue 22.10.020(d) establishes the superior
court’s appellate jurisdiction over matters appealed from subordinate courts and
administrative agencies.26 But the superior court does not exercise appellate jurisdiction
over arbitration disputes; rather, the court exercises original jurisdiction over applications
26
See AS 22.10.020(d) (“The superior court has jurisdiction in all matters
appealed to it from a subordinate court, or administrative agency when appeal is
provided by law, and has jurisdiction over petitions for relief in administrative matters
under AS 44.62.305. The hearings on appeal from a final order or judgment of a
subordinate court or administrative agency, except an appeal under AS 43.05.242, shall
be on the record unless the superior court, in its discretion, grants a trial de novo, in
whole or in part. The hearings on appeal from a final order or judgment under
AS 43.05.242 shall be on the record.”).
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to confirm or vacate arbitration awards.27 And the RUAA does not include an explicit
requirement that courts conduct a hearing when addressing applications to confirm,
modify, or vacate arbitration awards.28 We conclude that the superior court had no
statutory obligation to sua sponte conduct an evidentiary hearing. This conclusion is
consistent with our precedent: “In order to preserve the finality of arbitration awards,
the superior court’s function in confirming or vacating an arbitration award must
necessarily be limited.”29
27
See Leisnoi, Inc. v. Merdes & Merdes, P.C., 307 P.3d 879, 892 (Alaska
2013) (“The superior court is the trial court of general jurisdiction, with original
jurisdiction over civil matters. . . . Unquestionably, the superior court initially had
subject matter jurisdiction to determine whether the arbitration award was valid.
(footnote omitted) (emphasis added)); AS 22.10.020(a).
In asserting that superior court confirmation and vacatur proceedings must
include evidentiary hearings because the court must resolve factual disputes while
conducting intermediate appellate review, Aimee exhibits confusion about the difference
between oral argument and an evidentiary hearing. We have explained that oral
argument addresses legal propositions while evidentiary hearings address relevant factual
disputes. See Stinson v. Holder, 996 P.2d 1238, 1242 (Alaska 2000) (“[I]t was necessary
to conduct an evidentiary hearing to allow testimony about Stinson’s mental state and
to find facts about his competence at relevant times. The superior court had discretion
to decide whether to hear oral argument on Stinson’s motion, and it could well have
decided that oral argument on the legal propositions presented was not necessary. But
it was an abuse of discretion to deny the motion without hearing and determining the
relevant facts.” (footnote omitted)). Parties to an appeal may request oral argument.
Alaska R. App. P. 605.5(b). But Aimee appears to argue for both oral argument and an
evidentiary hearing, i.e., without providing a basis in law, she argues that because
superior court confirmation and vacatur proceedings are intermediate appellate review
and because she alleges factual disputes, she is entitled to an evidentiary hearing.
28
See AS 09.43.470, .490, .500, .510.
29
Lees, 705 P.2d at 460.
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2. The superior court did not violate Aimee’s right to due process
when confirming the arbitration award without an evidentiary
hearing.
Aimee asserts that her right to due process was violated because the
superior court proceedings “involve[d] substantial property interests, and [Alaska
precedent] mandates that [Aimee] was entitled to a hearing to present her case.” But
when a party fails to request an evidentiary hearing we will review a court’s failure to
sua sponte conduct an evidentiary hearing only for plain error.30 “Plain error exists if ‘an
obvious mistake has been made which creates a high likelihood that injustice has
resulted.’ ”31 And even if Aimee had the right to an evidentiary hearing, which we do
not suggest, procedural due process does not guarantee that a party will receive an
evidentiary hearing on all material fact disputes because “[a] party may waive the right
to an evidentiary hearing on disputed material questions of fact by failing to request one
30
See In re Estate of Fields, 219 P.3d 995, 1011 (Alaska 2009) (“We will
consider an issue not raised below or in a statement of points on appeal if it reflects plain
error, which exists if ‘an obvious mistake has been made which creates a high likelihood
that injustice has resulted.’ We cannot conclude that the failure to sua sponte order an
unrequested discretionary evidentiary hearing on the Alaska Civil Rule 60(b) motion was
an obvious mistake that created a high likelihood of injustice.” (footnote omitted)
(quoting Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981))); Owen M. v. State, Office
of Children’s Servs., 120 P.3d 201, 203 (Alaska 2005) (“We review [appellant’s]
argument for plain error because he did not ask the superior court for an evidentiary
hearing on [his child’s] placement. . . . [Appellant] cannot show plain error. The
superior court did not make an obvious mistake in not holding an evidentiary hearing
because neither the statute nor the [Child in Need of Aid R]ule explicitly requires one.”
(footnotes omitted)).
31
Johnson v. Johnson, 239 P.3d 393, 407 (Alaska 2010) (quoting Estate of
Fields, 219 P.3d at 1011).
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before the court rules on the matter.”32
During the confirmation and vacatur proceedings Aimee challenged only
two procedural decisions by the arbitrator. These were discretionary decisions subject
to review only for gross error. As discussed above, the arbitrator explained his decisions
and they were supported by the arbitration record. Because the superior court’s decision
to confirm the arbitration award based on the parties’ applications and the arbitration
record was not an obvious mistake that created a high likelihood of injustice, we
conclude that Aimee’s right to due process was not violated.
E. The Superior Court Did Not Abuse Its Discretion Or Err As A Matter
Of Law When Awarding Full Reasonable Attorney’s Fees.
The superior court awarded Donald and his businesses full reasonable
attorney’s fees for the confirmation proceedings. The court explained that the “award
of actual reasonable attorney[’s] fees and cost[s] in this case is mandated by the
November 2005 Settlement Agreement. Even if the Settlement Agreement did not
mandate an award of such costs and fees, they are independently appropriate pursuant
to Civil Rule 82(b)(3) and the policy favoring arbitration.” The court supported its
independent Rule 82 conclusion with findings that “[Aimee’s] case was largely frivolous
and devoid of merit. [Aimee] showed a remarkable use of untrue and misleading facts.
[Aimee] engaged in an unfounded campaign to damage the personal and business
reputations of [Donald] and [his businesses].”
Focusing on the superior court’s findings, Aimee argues that awarding the
fees without an evidentiary hearing violated her right to due process and that the fee
award was unreasonable. But Aimee ignores the superior court’s first basis for the
attorney’s fees award: The court concluded that the award “is mandated by the
32
DeNardo v. Maassen, 200 P.3d 305, 315 (Alaska 2009) (citing Corbin v.
Corbin, 68 P.3d 1269, 1274 (Alaska 2003)).
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November 2005 Settlement Agreement.” Rule 82(a) provides: “Except as otherwise
provided by law or agreed to by the parties, the prevailing party in a civil case shall be
awarded attorney’s fees calculated under this rule.” (Emphasis added.)
The settlement agreement provided for a full reasonable attorney’s fees
award made to the prevailing party in arbitration and explained that “[t]he decision and
award of the arbitrator shall be final and binding upon the parties and non-appealable.”
The settlement agreement also included the following provision: “In the event that either
party shall without fault on its part be made a party to any litigation commenced by or
against the other, then such party shall pay all costs and reasonable actual attorneys fees
incurred or paid by such party in connection with such litigation.” In her briefing Aimee
does not dispute the superior court’s conclusion that the settlement agreement mandates
a full reasonable attorney’s fees award. Therefore we do not need to consider Aimee’s
arguments under Rule 82.
Aimee does argue that the attorney’s fees award was unreasonable. When
determining whether attorney’s fees are reasonable courts “often focus[] on two factors:
(1) the hourly rate charged and (2) the number of hours reported.”33 But Aimee’s
argument focuses on neither of these factors. Rather than asserting that Donald’s and the
businesses’ lawyers spent an unreasonable amount of time or billed an unreasonable
amount per hour, Aimee focuses only on whether it was reasonable to award full
attorney’s fees at all. “[T]he trial court is in the best position to determine
reasonableness as ‘it has knowledge of the case that the reviewing court lacks’ and ‘[t]he
trial court’s greater knowledge of the case makes it uniquely suited to [determine
33
Okagawa v. Yaple, 234 P.3d 1278, 1281-82 (Alaska 2010).
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reasonable actual attorney’s fees] quickly, accurately, and fairly.’ ”34 We conclude that
the amount awarded was not an abuse of discretion.
Aimee finally argues that the superior court, when awarding attorney’s fees
without holding oral argument or an evidentiary hearing, violated her right to due
process. But Aimee never requested any kind of in person hearing on the issue of
attorney’s fees, and she cannot dispute that she had the opportunity to be heard during
the motion practice by submitting her opposition to the requests for attorney’s fees.
Because the superior court properly awarded attorney’s fees based on the
settlement agreement and because Aimee never requested, nor was she necessarily
entitled to, an evidentiary hearing or oral argument on the reasonableness of the fees, we
conclude that the superior court did not err in its attorney’s fees award.
V. CONCLUSION
We AFFIRM the superior court’s decisions confirming the arbitration
award and awarding Donald and the businesses their actual reasonable attorney’s fees
for the confirmation proceeding.
34
Id. at 1282 (second two alterations in original) (quoting Valdez Fisheries
Dev. Ass’n v. Froines, 217 P.3d 830, 833 (Alaska 2009)).
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