260 P.3d 220
Wash. Ct. App.2011Background
- Budget Tank Removal & Environmental Services contracted to remove old petroleum tanks and contaminated soil for Dougherty, invoicing $638,997.88; Dougherty paid $100,000 and withheld the rest.
- Budget and Dougherty had an arbitration clause; Budget initiated arbitration for the unpaid balance, Dougherty counterclaimed.
- In September 2008, Mary Cummings initiated a separate arbitration against Budget for soil remediation; Budget invoiced her for $364,523.90.
- Initially the two arbitrations were before different arbitrators; in April 2009 the actions were consolidated in superior court under RCW 7.04A.100 over Budget's objection.
- Arbitrations were heard in October 2009 in a single proceeding before Arbitrator Thomas J. Brewer; separate final awards were issued, Dougherty's award being the focus of appeal.
- The final award dated February 8, 2010 awarded Dougherty $1,042,301 plus substantial attorney fees; total final award against Budget was $1,598,939.60; Budget unsuccessfully moved to vacate and the superior court confirmed the award and added fees/prejudgment interest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was consolidation of the two arbitrations proper? | Budget argues consolidation is improper and reviewable. | Dougherty/Cummings contend statutory criteria for consolidation were met. | Consolidation properly within trial court's discretion; no abuse of discretion. |
| Did the trial court err by reviewing the consolidation order on appeal from the final judgment? | Appeal lies from final judgment; consolidation review is proper in this appeal. | Consolidation order is reviewable as part of the final judgment appeal. | Review of consolidation within final judgment appeal is proper. |
| Are there any 'face of the award' errors justifying vacatur? | Budget asserts multiple contract-interpretation and damages errors appear on the face of the award. | Most asserted errors require weighing evidence; not on the face of the award. | No error of law on the face of the award; issues do not appear on the face of the award. |
| Did the trial court exceed authority by modifying preaward interest? | Interim preaward interest amount should be incorporated without collateral review; amendment necessary for miscalculation. | Trial court could modify only under RCW 7.04A.240; there was not a valid basis to add $23,301.83. | Jurisdiction to add preaward interest beyond the interim award was exceeded; reversal of the added amount. |
| Is Dougherty the prevailing party entitled to appellate attorney fees? | Contractual provision entitles prevailing party to costs and fees on appeal. | Dougherty remains prevailing party; fees on appeal are appropriate. | Dougherty is prevailing party; attorney fees on appeal awarded. |
Key Cases Cited
- Pegasus Construction Corp. v. Turner Construction Co., 84 Wash.App. 744 (Wash. App. 1997) (limits on scope of review of arbitration awards)
- Tolson v. Allstate Ins. Co., 108 Wash. App. 495 (Wash. App. 2001) (remand when facial ambiguity exists in award)
- Estate of Norberg v. Federated Servs. Ins. Co., 101 Wash.App. 119 (Wash. App. 2000) (face-of-the-award rule; probate-like context for review)
- Lindon Commodities, Inc. v. Bambino Bean Co., 57 Wash.App. 813 (Wash. App. 1990) (contract interpretation not always reviewable on appeal of arbitration)
- Boyd v. Davis, 127 Wash.2d 256 (Wash. 1995) (arbitrator's contract interpretation generally not reviewed for error)
- Davidson v. Hensen, 135 Wash.2d 112 (Wash. 1998) (standard for reviewing arbitration awards; need for facial error)
- Daggett v. Dayton? (typo in original) Dayton v. Farmers Ins. Group, 124 Wash.2d 277 (Wash. 1994) (courts may not go behind the face of an arbitration award)
- Westmark Props. Inc. v. McGuire, 53 Wash.App. 400 (Wash. App. 1989) (authority for collateral limitations on award modification)
- Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778 (Wash. 1986) (structural relevance to CA and related claims; efficiency in resolution)
- Angelo (In re the Marriage of Angelo), 142 Wash.App. 622 (Wash. App. 2008) (reviewability of consolidation under RCW 7.04A.100)