846 N.W.2d 348
Wis. Ct. App.2014Background
- Graham signed a membership application incorporating the Manual, which referenced arbitration but did not include a standalone arbitration clause.
- The Manual requires arbitration for disputes between Realtors and imposes an 180-day deadline to file for arbitration after closing or knowledge of the arbitrable matter.
- In 2009, First Weber pursued arbitration against Graham; an arbitral award was entered in First Weber's favor and later confirmed in court without fees.
- Graham objected to the costs and attorney's fees in the 2011 confirmation action; the court denied fees and costs, ruling the court lacked authority to award them in that proceeding.
- Sometime before June 2012, First Weber sought a second arbitration to recover costs and fees related to the confirmation, citing the same 180-day limit.
- The circuit court denied First Weber's petition to compel arbitration, holding the 180-day limit barred arbitration because the trigger date was March 10, 2011 (discovery/knowledge date), making the dispute non-arbitrable after September 6, 2011.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the time limitation is arbitrable | First Weber contends arbitrability is for the arbitrators to decide | Graham argues the time limit is a matter for arbitration and the association controls it | Time limitation issue remains with court; not subject to arbitration |
| Who decides the 180-day time limitation issue | First Weber asserts arbitrators should decide arbitrability under the agreement | Graham asserts the court should decide arbitrability | Court correctly decided the time limitation issue; not delegated to arbitration |
| Whether the trigger date was correctly chosen | First Weber argues March 2011 was inappropriate as a trigger | Graham contends the court properly identified the trigger based on known facts | Circuit court correctly selected March 10, 2011 as the trigger date |
Key Cases Cited
- Cirilli v. Country Ins. & Fin. Servs., 322 Wis. 2d 238 (2009) (arbitrability and deferential view toward arbitration when clause exists)
- First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) (courts should not assume arbitrability unless clear and unmistakable evidence)
- Kimberly Area Sch. Dist. v. Zdanovec, 222 Wis. 2d 27 (1998) (arbitrability determinations require clear and unmistakable terms)
- Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002) (differences between substantive and procedural arbitrability controls)
- Baldwin-Woodville Area School District v. West Central Education Ass'n-Baldwin Woodville Unit, 317 Wis.2d 691 (2009) (arbitrator's interpretation of time limits; context matters)
- Employers Insurance of Wausau v. Jackson, 190 Wis.2d 597 (1995) (circuit court authority to proceed when arbitration agreement exists)