Loomis, Inc. v. Cudahy

656 P.2d 1359

LOOMIS, INC., Plaintiff,

v. CUDAHY, Defendant,

Audrie B.

Counter-Claimant, Party Third

Plaintiff-Appellant,

v. SMITH, Party R.

John Third

Defendant-Respondent, Liese; In

Ronald W. Liese & Associates

surаnce, Inc., Corporation; an Idaho Co., Pacific Insurance United

Washington Party Corporation, Third

Defendants.

Ronald W. LIESE and Liese & Associates

Insurance, Inc., Corporation, an Idaho

Cross-Claimants, R. and United Pacific In

John SMITH Co., Washington Corpora

surance

tion, Cross-Defendants.

No. 13291.

Supreme Court of Idaho.

Oct. 1982.

Rehearing Denied Feb.

basis. When his final bill of approximately $14,000.00 paid, was not Loomis filed a me- against property chanic’s lien and later filed an action to foreclose on the claim of turn, against Cudahy. Cudahy lien In filed third-party complaint against Smith A judgment others. default was entered which later Smith was set aside. provisions Pursuant 7— of I.C. § 902(a) evidentiary hearing was held on 2, 1977, December before the district court Lawson, Ketchum, Edward A. and Robert to determine whether a valid Nord, 111., Chicago, defendant, for counter arbitrate existed between the Af- claimant, third party plaintiff-appellant. reviewing ter briefs considering Ketchum, Terry Hogue, G. party third oral testimony presented by Cudahy, the defendant-respondent. district court ordered the parties proceed to arbitration. Cudahy sought certified in- DONALDSON, Justice. review of terlocutory this order which was A contract was entered into between the by 3, denied on February Court 1978. appellant-third party plaintiff Audrie B. order, Pursuant to a district court Cudahy and the respondent-third de- party (AAA) American Arbitration Association 2,1976. fendant John R. on February appointed was to arbitrate dispute. In perform Smith was to for compensation by 1978, August Cudahy filed a motion to dis- Cudahy services as an architect in the con- miss arbitration with the AAA which was struction of a single-family dwelling. The forwarded to the arbitrator. The AAA contract contained an arbitration clause.1 gave 10,1978, notice dated October that the It also recited that the house would be built would hearing be held on De- particular lot, on a but in fact the house 4, cember 1978. The arbitrator by letter built on a different Upon lot. Smith’s 14, 1978, dated November recommendation, informed the Cudahy entered into a parties agreed AAA that had to re- сonstruction contract with a contractor. A performance hearing schedule the bond was December by issued Ronald W. gave Liese and Liese The AAA notice dated Insurance, & Associates November Inc. purportedly agents new Cudahy’s for United Pacific date. Insurance Company. sought by counsel letter dated contractor de- November 16,1978, faulted and another contractor a continuance until February Loomis came in and contracted with Liese com- alleged personal problems due to which plete the house on a time and materials made unavailable for the scheduled Agreement signed by parties 1. The arbitration clause read as follows: all the hereto. Any involving consent to an addi- .arbitration “ARTICLE8” party tional or shall not constitute con- ARBITRATION any dispute claims, disputes sent to arbitration of not described ques- All and other matters in any party therein or not named or Agreement, describ- tion between the to this of, Agreement arising relating Agreement ed therein. This to arbitrate and out or to this or thereof, any agreement by the breach shall be to arbitrate with an additional decided arbitra- duly by party par- tion in accordance with the Construction Indus- consented to try specifically Arbitration Rules of the American Arbitra- un- ties hereto shall enforceable obtaining prevailing Association then tion unless the der the In no event law. arbitration, mutually agree ties otherwise. No shall the demand for arbitration be made after of, arising relating Agreement out to this the date when such would be barred include, consolidation, joinder shall any inor applicable statute of limitations. manner, party additional not a award rendered the arbitrators shall be fi- Agreement except by to this written con- nal.” containing specific sent reference to this Later, equity or in for the revocation hearing. counsel made a law together with provision De- contract.” This postponement formal dated following comprises the Idaho Uni- 4, 1978, also sections which was mailed and cember Act as enacted our form Arbitration to the arbitrator and Smith’s hand delivered act, By legislature passage in 1975. 5, 1978, after re- counsel. December On legislature aligned our has Idaho with the request, the arbitrator denied it viewing the jurisdictions adopt- which have majority of hearing. with the After proceeded and ed the Uniform Arbitration Act. Under the denial, hearing counsel left agreements to arbitrate act arbitration and any evidence. The arbi- presenting without given explicit recogni- and encouraged are 20, on December trator rendered an award disputed means to resolve tion as effective 1978, both which denied the claims of generally Arbitration offers an in- issues.3 ties.2 rapid pro- alternative to expensive and confirm receiving After cross-motions to It also serves to allevi- longed litigation.4 vacate, district court confirmed or court dockets. our own ate crowded Since later denied Cu- award and arbitration arbitration caselaw evolved array of sparse reconsideration of the motion for dahy’s legislature our enacted Uniform before Cudahy appeals. We af- confirming order. promulgated by Act as the Na- Arbitration firm. of on tional Conference Commissioners Uni- contends that no Cudahy first Appellant us to Laws, necessary it is for form State question of ruling was ever made on possible guidance edification and look agreement to arbitrate whether or not the of our sister among the courts states and This contention valid and enforceable. the federal system. re- clearly as the record is without merit 1 of the Uni 7-901 and I.C. Section § was conducted veals that after closely parallel Act Sec form Arbitration 7-902(a), I.C. the district pursuant § In Arbitration Act.5 tion 2 the Federal of agree- enforceable court found a valid and Gevyn of Middlesex v. Construction County ment to arbitrate. 53, Cir.1971), (1st cert. 450 F.2d 56 Corp., 955, 1176, denied, 92 31 provision 7-901 “a in a 405 U.S. S.Ct. Under I.C. § (1972), court held “that the L.Ed.2d 232 written to submit to arbitration contract which meet the grounds for revocation arising only between controversy thereafter mutual 2 are valid, requirement irrevo of 9 U.S.C. § enforceable and is which vitiates agreement at or a condition cable, as exist upon grounds such save 284], (Minn. N.W.2d 371 Minn. 123 “This [266 1963). award recited that: The arbitrator’s 2. sub- of all claims is in full settlement award this Arbitration.” mitted to lawyer perfectly “Every that a understands 4. very poor way con- to resolve law suit is a purpose is to of arbitration 3. “The whole emerges Regardless who victorious flicts. expensive formal and less a less substitute courtroom, everyone loses. from time, effort, settling par differences between method of expense of a law suit drains litigation. In arbitra ties for normal be lessened The trauma can both may persons greater be made of who tion use however, considerably, used if is permit expertise may particular that have a dispute.” of Educa- Board to settle the same adjudicate and settle differences them may Harley County Berkeley Mil- v. W. tion of City highly technical matters.” exist on 882, (W.Va.1975) ler, Inc., 221 S.E.2d 888 Lloyd Wright Founda v. Frank Madison J., concurring). (Neely, 409, tion, 361], 421 122 N.W.2d Wis.2d [20 Co., (Wis.1963). also Pettinaro Constr. See evi- provision in a contract ... “A written 5. Sons, Inc., Partridge, Harry Jr. & Inc. v. C. involving commerce dencing a transaction (Del.Ch.1979); Bel Pre Medical 408 A.2d 957 controversy thereafter settle Contractors, Inc., Center, Frederick Inc. v. transaction ... arising out of such contract 307], (Md.Ct.Spec. Md.App. A.2d 558 320 [21 enforceable, irrevocable, valid, shall be grounds, App.1974), Md. on other [274 affd grounds or in at law as exist such save equity (Md.1975); Layne-Minne 307], 334 A.2d 526 9 contract.” the revocation Minnesota, Regents of Univ. sota Co. U.S.C. §

109 initio, i.e., fraud, mistake, provision for arbitration clear. Where agreement ab is to deter International, court’s function disputed, Inc. v. duress.” In Halcon agreement is an Limited, 156 there Monsanto Australia 446 F.2d mine whether 949, to order arbitration where (7th Cir.), denied, arbitrate and cert. 404 U.S. 92 S.Ct. is found.” Id. 286, denied, to arbitrate (1971),reh’g 266 404 an 30 L.Ed.2d 46, 961; No. also District 677 at see School 92 S.Ct. 30 L.Ed.2d U.S. Kane, Cook, DuPage v. Del Counties regard to revo (1972), the court stated with Bianco, 145], N.E.2d Ill.App.2d 2 that cation under [68 § Center, Bel Pre Medical (Ill.App.1966); ‘revocation,’ word when used in a “[t]he Inc., Contractors, Frederick Inc. v. [21 context, ordinarily contractual refers 307], (Md.Ct.Spec. 320 A.2d 558 Md.App. but option; revocation of offer or grounds, on aff’d App.1974), [274 it is used in Section of the Arbitration (Md.1975). 307], Md. 334 A.2d 526 apply Act to to a contract and intended to be obviously connotation opportunity is our first under This with ‘rescission.’ Rescission synonymous Arbitration Act to con the Idaho Uniform when, for exam- appropriate remedy an a district court confronting sider the task fraud, ple, a contract is induced mis- cross-motions to judge entertaining when duress, take or and is ‘used where chiefly 7- stay arbitration under I.C. compel § the of rela- termination the contractual 7-902(a) of language the I.C. By § Williston, tion is mutual consent.’ 5 when 1454A, page (Rev.Ed., Contracts 4063 § party showing of a application “[o]n 1937). ‘Revocation’ and ‘cancellation’ are op- agreement ... [arbitration]

closely synonymous; to revoke means ‘to arbitrate, refusal to posing party’s annul, rescind, repeal, cancel.’ Glenram proceed shall order the O’Connell, Liquor Corp. Wine & v. 295 arbitration, opposing but if the 336, (1946). 67 N.E.2d 570 N.Y. agreement existence of the ty denies the arbitrate, sum- savings proceed clause of 2 the court shall “Since Section is ‘revocation,’ of the issue clearly limited to this is to the determination marily order if only ‘unmaking’ contemplated by so raised and shall type otherwise, is, unmaking resulting moving party, the act —that found for the the mutual cancellation of the con- shall be denied.” application from voiding tract or the of the determining Faced with the issue of fraud, mistake or du- transaction due to required under I.C. proper scope inquiry at 159. ress.” Id. being objectives mindful of the 7-902 and § mechanism, we hold that Corp. In World Brilliance v. Bethlehem of the arbitration Co., 362, (2d Cir.1965), scope 342 364 must be limited in inquiry Steel F.2d —is “ to arbitrate or is there agreement the court held that ... there an [un- ‘[Revocation’ inappropriate to review applies only der 2 of the to cases in not. It would be § act] as such would in step which the courts will in and rescind the the merits of fraud, emasculate the benefits agreement, many for reasons such as du- instances ress, or undue influence.” arbitration. Em- County

In Bernalillo Medical Center the dis Appellant contends that Association Local Union No. 2370 ployees’ on arbitra finding in his order trict court’s Council of Industrial Southwestern exist agreement was in tion that a valid Workers, Carpen- Brotherhood of United restricted upon severely ence was based ters, Cancelosi, 307, v. 92 N.M. brief, AFL-CIO alleged it appellant’s In hearing. (1978), 960 the court examined 587 P.2d permitted was not appellant that parallels their statute which our Section rescission, such as on issues proof introduce 7-902(a) and stated: contract, inducement, adhesion fraud in thе revocation, waiver, es mutual duty vagueness,

“Under this Act it is the court’s misrepresentation, provision toppel, where for it is ‍‌‌​​​​‌​‌‌​​‌‌‌​​‌‌​‌​‌​​‌​‌‌​‌‌​​‌‌‌‌‌​​​‌‌​​‌‌‍fraud or order arbitration 110 topped to such an amendment.6 Appellant argues deny

want of consideration. that this constituted error and should neces- that “It seems to me district court stated a reversal and remand for a new sitate [Cudahy] to which she that the matters However, hearing. evidentiary appellant whether or not the testified are matters of has failed to demonstrate that at the first nothing and have performed contract was hearing such evidentiary restriction oc- with whether or basically point to do at this curred; Cudahy’s counsel made insufficient It be- not the is void.” seems proof objections offers of when were sus- breach of a that evidence yond cavil questioning tained as to his lines of at the a contract. does not invalidate contract hearing. expressed As we in Rutter v. transcript does Our review McLaughlin, 292, 293, 101 Idaho 612 P.2d court’s state- the district not reveal (1980): 136 Our examination ment was error. appeal “On the appellant carry must the district does not disclose record showing burden of that the district court agreement to arbi- finding of a valid court’s committed error. pre- Error will not be erroneous; therefore, we clearly trate was appeal sumed on but must be affirma- finding. will not disturb tively appel- shown on the record Mead,

lant. Dawson v. 557 98 Idaho issue concerns whether The next (1976); P.2d Equip. Glenn Dick Co. refusing erred in to vacate district court Construction, Inc., Galey 97 Idaho when faced with a award the arbitrator’s (1975).” P.2d “that grounds motion to vacate postpone Our district appeal rule has been that on refused the Arbitrator over- findings being court of fact will not be cause shown hearing upon sufficient ” turned unless erroneous. I.R.C.P. clearly necessary is for decision .... It therefor 52(a). statutory grounds for vacat to review the by I.C. 7- as established ing § an award evidentiary hearing, At the Cu 912(a): 2, signing February admitted the dahy 1976, stipulated party, contract and to its execu of a the “(a) Upon application exhibit. tion and it was admitted as an an award where: court shall vacate that this contract argued counsel by corrup- (1) procured was The award only writing could be amended in and this means; tion, other undue fraud or done, recited that was not that the contract partiality by (2) was evident There lot particular the house would be built on a neutral, cor- as a or appointed arbitrator lot, it built on a fact was different arbitrators, or mis- the any ruption therefore no the written contract was rights the prejudicing conduct valid, longer agree and that the written ty: ment between the architect and owner pow- their exceeded (3) The arbitrators agreement. an oral cross- replaced with On ers; examination, en Cudahy admitted that she postpone refused (4) The arbitrators no termi agreement tered into written being cause upon sufficient hearing ruling in the Implicit nate the contract. hear evi refused to shown therefor compelling the district court arbitration or oth controversy 2,1976, dence material contract February must be that hearing, contrary so conducted term erwise was either amended in fact as to the 7-915, section Idaho provisions describing the lot or that was es- implied may acts of one from the assent have held that 6. We of a the terms party in accordance party to a contract cannot alter its “one Po change proposed Ore-Ida the other.” assent of the other and terms without 290, Lаrsen, Products, 83 Idaho Inc. v. tato minds of the must meet as to that the 384, (1961); 296, v. 387 362 P.2d any proposed modification. The fact of 659, Co., Idaho Seed 54 Washburn-Wilson may implied from a course of 969, (1934). 970 34 P.2d with its existence and accordance conduct us to Code,[7] guess do not lead second substantially the prejudice as to Arbitration is district court or arbitrator. rights of a party; dilatory not to be tactics. avoided (5) agree- There was no arbitration adversely ment was not and the issue also Appeal founded under section proceedings determined in appellant’s district motion court’s denial Code, 7-902, party Idaho and the did confirming for reconsideration of order participate in the the award. This motion is treated as a objection. raising without 59(e). Obray motion under I.R.C.P. relief was such that it fact that the Mitchell, (1977). 567 P.2d 98 Idaho a granted by could not or would not be The motion advance new does not equity ground is not for of law or award. grounds vacating for refusing vacating or to confirm we the district Because hold that court’s award.” arbitration award is power to vacate an statutory grounds confined to the set forth alleged to vacate Cudahy by motion we 7-912(a), in I.C. affirm the denial. § the arbitrator refus- statutory grounds that Co., See Pawlicki v. Farmers Insurance postpone hearing upon ed to sufficient Ariz. 618 P.2d 1096 (Ariz.Ct.App.1980). 7-912(aX4). being cause I.C. shown. § One of attributes of the arbi- principal Appellant argues that an additional promotes it process speedy tration is that policy issue present which should deny resolution of controversies. To vacate an enforcement of the arbitration agreement. 7-912(aX4), award under I.C. § Appellant phrases this issue as “where the must demonstrate that the arbitrator was issues between complex, two to a postpоnement. shown “sufficient cause” multi-party subject action are agree In the was a further alle- appellant’s brief arbitrate, ment to remaining par gation partiality of evident which under not, ties and related controversies are does 7-912(aX2) grounds would be additional § the policy of and consistent complete adju review, vacating the award. From our dication contained in the Idaho Rules of we find no the district error in court’s de- Civil Procedure require that arbitration be termination. It is not “sufficient cause” to denied?” appears This issue first merely be attend a hearing unable to when record in Cudahy’s motion for reconsidera given adequate 7-905(a) pro- notice. I.C. § tion of confirming the order the arbitration may vides that arbitrators hear and “[t]he award. Since we do not consider this issue controversy upon determine the the evi- raised, to have been timely pass we do not produced notwithstanding dence the failure judgment upon E.g., its merits. ex State appear.” of a duly notified I.C. Click, 443, 449, rel. Evans v. 102 Idaho 631 7-907(b) a method provides by which Cu- § 614, mem., (1981), 987, P.2d 620 455 U.S. dahy presented could have her side to the 1608, 102 S.Ct. 71 L.Ed.2d (1982); 846 Mc despite arbitrator her deposition pro- Gisler, Neil 693, v. 696, 100 Idaho 604 P.2d inability sug- fessed to attend. We do not 707, 710(1979); see also Hall v. Payette Boise gest that no set of circumstances could exist Co., 686, 693, 125 311, Lumber 63 Idaho P.2d which would “sufficient establish cause.” (1942). 314 We only appellant conclude that has Attorney appeal fees on are denied both failed to establish “sufficient cause.” The 5, was scheduled for December The district orders are affirmed. 1978, through counsel Cudahy made request formal no postponement earlier BAKES, C.J., and McFADDEN and 1978, 4, than December mail and on SHEPARD, JJ., concur. 5, 1978, by December hand delivery just arbitrator prior hearing. (McFADDEN, J., registered prior his vote 31, circumstances precipitating 1982.) recited as to his August retirement on confusing may 7. The § reference to 7-915 is be in error.

112

BISTLINE, Justice, dissenting. I. A General Overview Nord, Mr. appeared who with Mr. Lawson John R. Smith should look favorably upon and argued on behalf of Mrs. Cudahy on what may have been only his encounter appeal, grouped his argument into three with the Idaho court system and its rules of parts. First, he argued that Cudahy Mrs. procedure which are supposedly guided by should not have been forced into arbitration the principle requiring liberal construction on the basis of the form agreement which so as just, “to secure the speedy and inex- produced and she obligingly signed. pensive determination of every action and Second, he argued that the arbitration hear- proceeding.” 1(a). I.R.C.P. Rule 1 is “a ing officer and the appoint- tribunal which constant reminder that the rules are to be ed him justified were not in proceeding construed, liberally just and a result is al- the face of a postponement— motion for ways the ultimate goal to be accomplished.” hence the district court erred not vacat- Blaser, 435, 439, Sines 98 Idaho 566 P.2d ing the award and allowing day her a 758, (1977). long judicial “It has been Third, court. argued he that because of the policy in Idaho that myriad of controversies be deter- issues and involved in the mined controversy disposed the district court should not each on its own have directed arbitration. particular facts and justice as substantial may require. judicial The exercise of dis- opinion holds, Court’s as did the dis- bring cretion should tend to judg- about a court, trict that Mrs. Cudahy was not enti- Bunn, ment on the merits.” Bunn v. postponement. tled to a It discloses little grounds of her Idaho (1978). 587 P.2d requesting postpone- ment and liberty takes the of giving no policy This is frequently applied when the effect to her postpone- first for a Idaho courts are asked to set a judg- aside ment, apparently thought which to have ment which against has been taken a de- been “informal.”1 The Court declines to fendant default. happened Such to John address the third severe complexity issue— R. Smith when in this September action on enough to render this entire controversy 16,1977, judgment was entered him unarbitrable —on the basis that it was not $160,000 for approximately for proven dam- timely raised. The ordinarily Court re- ages chargeable to him arising out of his serves that rationale for use where an issue contract with supervise Audrie appeal raised on for the first time —not so dwelling. construction of a residence with this case. With ease the Court finds Later order of the trial court the default little merit in Mrs. Cudahy’s contention that judgment she should not have and default were set aside. Al- obliged been to arbi- trate on signature the basis of her on the though the record before us does not con- contract with opinion Smith. The Court’s showing tain documentation the basis correctly observes that this is a case with- upon which this accomplished, and it is prior out precedent, per- Idaho but fails to appeal, not of issue on one be certain may ceive that such is all the more reason for that the long judicial policy established closer scrutiny of the claimed error. The part mentioned above a played prominent Court has ducked a very important and judge’s determination to set aside the difficult issue in addressing complexi- not judgment give “day and John Smith his ty is an even more troublesome as- —which But, court.” on the other hand— pect apparent when it is so that this entire In litigation the annals of Idaho Audrie case with its numerous issues and Cudahy surely B. will be entitlеd to some subject piecemeal should not be resolu- reknown as one of the few unfortunate circumstances, tion. Under these the denial request of the individuals who would see little of Idaho’s postponement may simply gross. seen as judicial policy liberality. All she wanted initially sought postponement counsel a continu- a dat- “formal” was 16, 1978, III, part ance a letter dated November and ed December infra. 1978. See to do was contract, Liese, build her own house. Unlike and breach of against and most area, who venture into that she did Liese Associates Insurance Company, everything right architect, Company, United Pacific Insurance as- —hired obtained a written contract with her build- serting under the liability performance er, and required performance bond —and obligation bond issued in connection with she surely was entitled to look forward to Upon the Griffin contract. motion there- that happy day when the house would be for, Loomis, granted summary Inc. was completed. How out, it was all to turn judgment foreclosing the mechanic’s lien however, was first signalled Loomis, Inc. on the residence.” 101 Idaho at Smith, v. Cudahy 101 Idaho 615 P.2d 460, 615 P.2d at 129. (1980), wherein are begin- found the The trial mechan- court’s foreclosure of the nings of Audrie Cudahy’s tale of woe and case, ic’s lien was reversed in that earlier frustration in this Court’s statement of the of, result I certainly although was in favor factual background: for procedural technicality compelled I felt “Cudahy Smith, architect, hired Bakes, to vote with Justice who believed design supervise the construction of a appeal premature. was house. Upon the recommendation of Loomis, it, In I no as remember there was Smith, a contract was entered into with suggestion many-pronged that contro- one Griffin for the сonstruction of the versy involving the various parties might house. Griffin was required to furnish a split and some of it taken out of the court performance bond in connection with his system. however, unanticipated, was contract to construct the house and that occur, making it later appear that Audrie performance bond was issued by Ronald Cudahy, who though every- she had done W. Liese and Liese & Associates Insur- thing right, had not failing done so in ance, Inc. purportedly agents as for Unit- attorney retain an to examine the form ed Pacific Insurance Company. Griffin provided. contract which prob- Smith In all defaulted on his construction contract however, ability, she never expected any and failed complete building. controversy Smith, with who was her Loomis, Inc. contracted to complete mate- friend, and who agreed on her behalf to basis, rials complete and did so the struc- supervise construction of her house. But ture according to specifications, ex- too, even had she covered that base it is not cept portions for certain which were al- likely that comprehended she would have legedly completed because of weath- that one simple phrase little in her contract er. Griffin’s original contract price for would, mentioning $45,- construction of the house was arise, the event a did take her out 015.22. The asserted cost of the struc- nonju- Idaho courts and before some ture, partially as built Griffin and private dicial enterprise operat- “tribunal” completed Loomis, $71,610.02. ing Seattle, Washington out of I offices. “When Loomis paid was not much, party doubt that either knew any- if $14,000.00 amount of approximately thing, about procedures, his final completion bill for the doubt they further discussed the arbi- structure, hе filed the instant action seek- provisions. tration It is extremely unlikely ing to foreclose a against mechanic’s lien either had ever seen the Con- the Cudahy property. Cudahy filed a Industry struction Arbitration Rules of the counterclaim Loomis for the com- America, Arbitration Association of which pletion of the structure alleged and also would be the tribunal of arbitration.2 poor Loomis used workmanship. Cudahy

also filed party complaint against a third description “Confusion” is the best of the the architect alleging malpractice Smith events transpired orig- which have since the filing Cudahy’s attorney inquired 2. The first of these rules in the Idaho tion when at Library appears library Regula- State Law have to been in a for and search the Rules litiga- made until after the commencement of tions. 114 Loomis, (1955),

inal 128 complaint was filed Inc. 612 affirmed 309 N.Y. outset, Am.Jur.2d, more than five years ago. (1955); At the N.E.2d 416 5 Arbitration respondent (1962). Smith’s failure to answer the It was error for Awards § third-party claim which re- subsequently the court to avoid this determination at the sulted in judgment being a default entered compel to arbitration hearing on the motion against him ostensibly was in belief that contemplates when specifically I.C. 7-901 § arbitration was the exclusive for remedy as allowing grounds introduction of “such disputes arising resolution of between him- the revocation equity exist at law or in self and appellant Cudahy, as is evidenced “valid, to a of contract” as a defense jurisdic- the motion to for lack dismiss of enforceable and irrevocable” arbitration tion filed when had suffered the Smith re- agreement. judge’s error this judgment deciding default court it in- gard substantially prejudiced Cudahy’s —the would treat the motion to as a mo- dismiss opportunity since was subsequent terest no compel tion to arbitration. Smith’s counsel present these funda- provided for her to urged upon the court that issues addressed however, judge, cannot mental issues. arbitrability dispute of the were to confu- product be faulted for the end settled the arbitrator at the arbitra- Notwithstanding his certification of sion. 7-901, however, tion itself. I.C. § pursuant this Court to I.A.R. the issue to determines the validity of arbitration appellant Cudahy’s denied Court agreements supports a different conclu- interlocutory appeal. sion. rule failure to Similarly, the arbitrator’s of “Validity agreement. arbitration —A issue, although the arbitrability on the agreement any existing written to submit (AAA) Arbitration Association American to controversy provision it, acknowledged was a specifically tribunal in a written to to arbitra- contract submit rights Cudahy’s further inroad on —all arising tion any controversy thereafter confusion born my opinion growing out of valid, between the enforceable precedential guidelines. lack One irrevocable, grounds save such case, disturbing aspects of the most of this equity as exist at law or in for the revo- however, apparent is the failure of ” 7- cation of contract .... I.C. § comply AAA to with the Construction In- (1979) added). (emphasis (hereinafter Rules dustry Arbitration Rules) by the AAA. Sections guideline promulgated

I.C. 7-901 is structured as a § 13,14 proce- of the Rules outline the determination of the existence of a valid and 15 arbitrator(s). agreement required by appointment as 7— dure for § 902(a).3 initially contemplates input It Each provided is not for arbitrators section involved in the but rather for trial faced with mo from the judges individual(s) appointed to be regarding tions to As noted in compel arbitration. from Inc., hearing. appear It does not Houlberg, Berkovitz v. Arbib & 230 for the with 261, 130 288, 291 provided (1921), by Judge N.Y. N.E. the record that to Cardozo, to determine who was Appeals any opportunity then of the Court had York, originally so her fate. “[wjhether parties] New have decide [the appoint question moved the district contracted [for arbitration] so arbitrator and it was must still determine for AAA to act as which the court object to counsel did not Application Spectrum itself.” Fab ordered. See It appointment AAA’s at that time. Corp., App.Div. rics 139 N.Y.S.2d agreement 7-902(a) party denies the existence of the reads follows: I.C. § arbitrate, proceed the court shall summari- “Proceedings stay compel or arbitration. ly the issue raised to the determination of so —(a) party showing application of a On if found for the and shall order arbitration moving 7-901, in section Idaho described otherwise, application party, Code, opposing party’s refusal arbitrate, shall be denied.” shall order the the court arbitration, opposing proceed if the but H5 fate, further reinforced the nor decide her apparent that neither Smith Cu- this Court. injustice acquiesced now as an dahy knew that AAA did not act merely private arbitrator and was a enter- confusion abounds It obvious that prise supervise court of sorts which would to mention in the controversy —not procedure. Cudahy the arbitration If had appellant between original acquired (which then the AAA Rules opportunity respondent. Without contract), were not attached to the her fail- single at a claims and defenses present her object ure to have may upon been based legitimate that matter at a trial or for expectation that the AAA would tribunal proceeding, Audrie follow procedure rights which it had estab- her and remedies doomed to watch judg- incongruous of appointment lished for the of arbitrators. dissolve in a series mеnts, opinions. now awards and appointment of the arbitrator AAA came in a letter to the without Meeting II. A of the Minds side, input further from either therefore procedures contravention of the established her Cudahy pursued In court district by the Rules. The apparent confusion sur- the written upon claim based Smith rounding application AAA’s him the construc- supervise contract with Rules for selection of the denied Following arbitrator tion of her home. district her- Cudahy input regarding evidentiary hearing4 Audrie who would she found unconflicting any you uncontradicted testi- have discussions with him Did Q. mony built, was as follows: regarding how the house was to be what, you your Would state full how the house was to built? name? “Q. Cudahy. really anything A. Audrie B. A. Not because I don’t know your What is formal education? Q. about construction or architecture and I felt school, High college. A. why I he that’s hired an architect so could you regarding Did take courses ar- Q. done, see what was what I wanted done. chitecture, design, anything of homes? you I hand what has been marked as Q. No, A. sir. stipulated Defendant’s Exhibit 1. I think we knowledge you you regarding What have Q. you that’s a contract and Mr. Smith architecture and construction of the homes? signed, is that correct? Absolutely A. none. A. That is correct. you What discussion did have with —did Q. your And that’s for the construction of Q. you know Mr. Jack Smith? contemplated residence on Lot 6? Yes, A. I do. A. Yes. Who is Jack Smith? Q. Looking provisions agree- at the in that Q. ment, A. The architect that— you pro- ever did discuss those you What discussions did have with Mr. Q. visions with Mr. Smith? home, regarding your his services for No, A. I did not. your you home that intended to have built you And how did was the first Q. —when essentially? you agreement? time saw this you regard A. What do mean in to discus- signed A. When I it. sion? you long you Had ever—how did have to Q. home, you When first decided to build Q. contract, you look at the at thаt exhibit that you how did decide on Mr. Smith to start have? with? I A. I don’t recall that did. Well, consideration, course, A. the basic you agreement, reviewed that Have have money Q. was the amount of I had to you spend. looked that over since primary then? That was the concern. Yeah, say guess you I I looked at A. can it. How much was that? Q. Fifty counting agreement essentially everything, everything, A. Does that summa- Q. rize ¡smith lot, house, everything. your prior discussions with Mr. that, upon you your agreement regarding And so based how did Q. decide with him Mr. Smith? your design construction of home and the A. He assured me that house could be it? money. done for that amount of Well, just con- A. I don’t understand this you give any type Did idea of the Q. home tract at all. you wanted built? you Smith ever discuss with Did Mr. Q. really. say I A. Not mean other than to we provision in there? budget had to stick with the limits and obvi- A. No. ously inexpensively constructed house. self person out of court and clear even in Idaho that the enter- thrown into arbitra- tion, the court concluding below that she agreement has to have an ing into an was bound to separately arbitrate her claim agreement what that is. understanding against Smith, although both could provision “And in fact the arbitration process nonetheless utilize the discovery for arbitration provides in the contract the district preparing their industry to the construction ar- pursuant hearing. arbitration bitration rules of the American Arbitra- urging In that claim should not tion Association. be taken system, out of the court her attor- ‍‌‌​​​​‌​‌‌​​‌‌‌​​‌‌​‌​‌​​‌​‌‌​‌‌​​‌‌‌‌‌​​​‌‌​​‌‌‍these Rules were nev- position “It’s our ney there explicit made his contention that to the owner what these er indicated any meeting had not been minds get In when I tried to Rules are. fact regarding provision the arbitration found Li- copy of them from the State Law agreement, governing and that they copy didn’t have a of them. brary, rules, being attached to the contract the Arbitration Asso- They got one from available to his client at the time the con- ciation. signed binding: tract was should not be knowledge “There is no of what “MR. ROLZITTO: I understand that procedures arbitration or rules were. Es-

position. just stating But I am that reason we feel sentially for that that provision essentially does have provision in the contract is too impact upon rights serious vague owner. And the contract law is to enforce.” pretty What discussion did Mr. Smith have A. No. Q. with you regarding By anyone that contract at the time else? the architect Q. you signed it? A. No.” Well, I think he A. dard, said that it was a stan- And, attorney: Smith’s on cross-examination know, you having form and never been you read the Did Mr. Smith forbid “Q. exposed before, anything like this I as- contract? procedure. sumed it was standard whether I It was never discussed as to A. should read it or not. true, MR. ROLZITTO: That’s Your Honor. is, My you question did he forbid to read Q. position original agreement Our is is in fact the the contract? signed as Audrie has stated. But subse- No, A. he didn’t forbid me. quent to that when the home was built on the you to take it and discuss it Did he forbid Q. lot, agreement second nor was not amended attorney example? itwas even—nor the conduct of defense up. came A. That never of the architect in this case did it conform you read the contract? Did Q. agreement. with that So we have no—what I it? A. Did read saying, I am cases, and this Court has in other held Yes, ma’am. Q. there can that be an amendment to the it, very glanced over but it was all A. I Architect’s contract or a contractor’s con- complicated. tract actions of the true, Cudahy, that Mr. Smith Isn’t it Miss trying Q. did review I parties to show am actions at least some of the material of no to that con- there was amendment you? that contract with subsеquent part actions on tract and the he did not Possibly clearly was to reviewed the fact that he show A. the architect that comply provisions. complete with these the whole build- intend to have control over Well, again I think ing THE COURT: that of the house. agree- comply comes if he didn’t with the you had rather extended Isn’t it true that Q. discussions ment, maybe if I comes into a matter regard to his fee? order arbitration for the arbitrators to con- No, say it was extended. A. I wouldn’t again your you saying sider. But are were extended discussions. There contract, position isn’t a is that there discussions, have such didn’t You did Q. Now, I will hear to arbitrate. you? point is an evidence on that agreement of whether there me what his fee was. A. He told Objection to arbitrate. sustained. your testimony reviewed it’s he never SoQ. Rolzitto) you (By Mr. Do have Q. you at provisions contract with of that knowledge of what the construction industri- all? are, al arbitration rules Audrie? knowledge, my no.” A. To Absolutely A. none. you? they Were ever discussed with Q.

H7 to me that the matters A few minutes later the trial court ex- “It seems issue testified are matters of plained to counsel his view of the which she has per- before or not the contract was him: whether nothing basically have to do formed and Well, question “THE be- COURT: whether the point at this with or not is, is, fore me and under the statutes is void. agreement agreement whether or not an to arbitrate has been entered into between these “Now, to dis- respect pre-trial with says clear. It quite ties. The statute is I concerned about that as Mr. covery, am showing an application party on of a up, prob- there are some points Rolzitto agreement opposing party refusal with that. And he lems in connection arbitrate, to the Court shall order the pre-trial there is some advises me that arbitration, but if parties proceed to with yet. done discovery to be opposing party the denies the existence “Now, I it would seem to me can take arbitrate, agreement the to the Court I can order in the one of two actions. proceed summarily shall to the determi- discovery be pre-trial arbitration that nation of the issues so raised and shall this action is not —cer- permitted because moving order arbitration if found for the dismissed, only stayed it’s until tainly not otherwise, party, application shall I stay move. Or can the arbitrators says my denied. The statute that’s func- pre-trial such time as the arbitration until tion is to determine whether there is an But I choose to discovery completed. agreement to arbitrate. arbitration, but, in the order order the discovery is not pre-trial that

direct Well, stayed.” again “THE COURT: and I think

that comes if he with comply didn’t pat- was compelling The order agreement, that into a mat- maybe comes trial court and directed terned as ter if I order arbitration for the arbitra- on December was entered tors to consider. you saying But are fact or any findings not make court did again that your position is that there isn’t it had law on the issue which conclusions of contract, a an agreement to arbitrate. tried, an order that it found the but made Now, I will hear point evidence on that to arbitrate agreement existence of a valid whether there is an to arbi- “in the form of Article 8 Standard trate.” dat- Agreement Ownership-Architect A.I.A. concluded, After testimony was pro- article 8 1976.” Said February ed the trial court ruling announced his from vides in full as follows: the bench: claims, matters in disputes “All and other Well, “THE COURT: let the record to this question parties between show, Madam Reporter, Clerk and Mr. of, relating or arising out Agreement, that I am gоing to order arbitration in thereof, or the breach Agreement this this matter. Idaho Code 7-902 seems to in accord- by arbitration shall be decided me to make that an almost a mandatory Ar- Industry ance with the Construction obligation my part. on American Arbitra- bitration Rules finding

“I am agree- obtaining theré is an then tion Association unless arbitrate, ment to that this parties mutually agree matter comes otherwise. No ar- bitration, of, under the Uniform Arbitration Act of the arising relating out or include, of Idaho. I Agreement State believe under that Act shall consoli- dation, manner, if the joinder arbitrators do not act in a or in proper manner or there are some other party party additional not a to this matters that Miss Cudahy desires to Agreement except by written consent Court, bring to the she has right to do containing specific a reference to this it as I Uniform understand the Agreement signed by parties Arbitra- all the tion Act. Any hereto. consent arbitration in- however,

volving an additional presents atypical or situation in- party shall not constitute consent of a volving incorporation to arbitration document of any dispute not the determination of an unnecessary described therein for any party not named or otherwise valid contract. reference to described Agreement therein. This in article proceedings to arbitrate 8 of any agreement contract between arbitrate with an A.I.A. standard form Cu- additional obviously duly dahy designed consented hereto unilateral specifi- shall be form —in which re- architect’s cally enforceable under the prevailing ar- ancient spect it is much like the and now In bitration law. no provision event shall the de- ob- nearly discarded totally mand arbitration be made after taining judgment promis- on confessed date when such barred would be acquiescing note state- sory based by applicable the statute of limitations. solely that person appointed ment of a for The by award rendered the arbitrators upheld, If it is the clause would purpose. shall be final.” any dispute to submit to parties bind both Arbitration Association for the American The trial court failed to discuss the conten- with its construction resolution in accord tion that Industry the Construction Arbi- clause industry But the introduces rules. tration the AAA in Rules of mentioned and terms unknown unavailable extraneous article 8 were not attached Cudahy- likely than to as to and more Smith Cudahy, agreement, (and Smith or that like- Cudahy provision, of such a also validity well. The well) them, ly as had never and seen to that venue shall be in agreement akin for certain had not discussed them.5 Florida, law shall that of applicable and Cudahy by That can be the obligated Massachusetts, is at least doubtful. clause which to incor- attempted arbitration A case porate by reference rules recent California involved sub- by promulgated In a stantially dispute the those similar issues. be- having AAA without ever seen regarding to tween realtors a real estate having had them made available two rules or the had proposition apparently her in itself. commission questionable is a agreed by-laws the of local incorporation by of of a document to abide a practice The unattached, by-laws, of in another has board realtors. by reference to it document incorporated imposing a appellate provision duty review in a to sporadic encountered Co., v. Idaho arbitrate. The court stated that sec- Hoffman S.V. 102 Idaho. See “[a] of (1981); ondary part becomes a con- 187, 628 P.2d 218 Blumauer-Frank document 501, as verbatim Young, though 30 Idaho 167 P. 21 tract recited when it is Drug v. Co. incorporated by contract (1917). allows the into the reference generally That doctrine terms of the provided incorporated of one document anoth- that the supplementation readily neces- document are available the other provide er order to essential terms in bar, Inc., party.” King Realty, at v. Larsen 121 a valid contract. The case sary for 13, 1977, Cudahy of existence between Audrie B. and 5. court’s order December The trial of Article the follows: John R. Smith in the form 8 of is as Agreement Standard A.I.A. Owner-Architect before the “This matter came Court for hear- 2, February dated Compel ing SMITH’S on JOHN R. Motion to 2, 1977, “IT ORDERED Friday, IS FURTHER on at Arbitration December Cudahy Audrie B. are ties John Smith and R. AUDRIE B. 9:00 a.m. CUDAHY and JOHN hereby proceed person present directed to arbitration R. SMITH were and were respective attorneys, litigation represented by them. All their between Campion. Audrie Rozzitto and Thomas B. and all issues between Victor hereby Cudahy has reviewed the briefs on file here R. Smith The court B. stayed and John testimony presented completion the oral and considered until arbitration. Cudahy hearing at pretrial Audrie B. said and “IT IS FURTHER ORDERED that therefor; good appearing cause discovery Audrie B. and between during “IT IS HEREBY ORDERED that this Court may proceed John the arbi- R. Smith seq., finds, 7-901 et pursuant to I.C. § proceedings.” tration there is a valid to arbitrate

119 4, 1978, 358, 226, al- Cal.App.3d 349, 175 time it set for December Cal.Rptr. 231 (Ct.App.1981) (emphasis added); e.g., Wil- ordered though had been Co. liams Construction v. Standard-Pacific a earlier. In No- year district almost 912, Corp., Cal.App.2d 442, Cal.Rptr. 254 61 vember, from hearing was rescheduled (Ct.App.1967); 17A C.J.S. Contracts 299 § By letter dat- 4 to December 5. December (1963). Valley Exchange In Scotts Fruit 16, 1978, attorney ed November Refrigеration Co., Cal.App.2d Growers 81 requested continuance of a 437, 183, 189 (1947) (overruled P.2d on hearing prior weeks three —almost grounds by v. National Hischemoeller una- Appellant’s date. scheduled Co., Storage Ice & Cold 46 Cal.2d (she child had been vailability and minor (1956)), P.2d the California Court area), fi- Chicago obliged to return Appeals clarified the prerequisites difficulties, family commit- nancial incorporation by reference of an extraneous re- ments stated as reasons were document: her attorney therein quest. Her committed “For the terms of to be another document first during week being present incorporated into the executed document days away. sixty scant February, reference must clear the AAA tribu- was addressed to letter unequivocal, reference must be Seattle, rules, to per its nal office in called to the attention the other Davis, to Mr. attorney also Smith’s thereto, and he must consent by as arbitrator appointed individual incorporated terms of the document must response was from the AAA. There no easily known or available to the con- tracting parties.” tribunal, objection from the and no adverse made a party. Cudahy’s counsel formal The California decisions are sound. The which was dated request postponement for incorporated document must be known or 4,1978. Mr. Davis arrived December When easily In this case available request a hearing, it was to conduct the Cudahy’s testimony not. at De- 2, hearing cember evidentiary estab- Mr. postponement again presented was to knowledge lishes had no of that she the Davis, without a scintilla of rea- but denied industry rules construction nor hear- explanation. son or The arbitration attempted had Smith or to anyone else ex- ing parte presenta- into an ex then turned her, plain provide them to her awith witnesses, and and was tion his Furthermore, copy. unconflicting rec- terse, totally conclusory followed aby ord demonstrates that the vast state law unexplained denying decision all simply library a possess copy did not of the rules Smith, denying Cudahy’s claims until counsel requested them against Cudahy. also Smith’s claims subsequent beginning sometime opinion Court’s recites with Although the litigation. rescheduling by accuracy much It is a travesty obligate Cudahy to hearing December 4th to AAA of the from proce- arbitrate accordance certain 5th, it fails to note that this December knowledge. had Ar- dures which she no Davis, who must request at the of Mr. chitects who foist their clients arbitra- officer, since the hearing considered as the tion rules of the American Arbitration As- appointed the actually district had an Institute of through sociation American (whose that it is tribunal say AAA rules Agreement Architects Form Standard Davis, arbitrator). an attor- and not Mr. be, least, required at the attach should his own schedule. ney, had a conflict the contract. those rules to wholly not inaccu- the Court is Similarly, 60-Day Post- III. The Refusal Allow a the letter differentiating rate in between ponement request 16th and formal of November than that a request December 4th —other hearing did become record the AAA perusal at which shows until October of scheduled tribunal is not founded on formality. delay sought. which she His best shot in Rules, yes, but formality no. Mr. Davis’ his after-the-fact brief in district court is postponement was also in unsupported “Cudahy statement form, letter as was a notice from AAA ample had notice opportunity to ar- advising that Mr. Davis would act as the range hearing.” to attend the R. at 251. arbitrator. However, Another letter affidavit, contained an im- her uncоntradicted portant ruling AAA, one overlooked which was attached to brief showed Smith’s Davis, Mr. court, trial and now by otherwise: this Court. ruling, That found in the letter CUDAHY, being “AUDRIE B. first September 19, 1978, stated: sworn, duly states under oath that she is AAA,

“The after reviewing the conten- respondent above-captioned ar- tions of parties, has determined that making bitration and that she is this affi- an issue as to arbitrability exists which davit in support of her motion for a con- could be determined Arbitrator.” hearing tinuance of the scheduled Decem- (Emphasis added.) 5,1978, ber and in support of said motion states as follows: The “decision” of Mr. Davis would not satis- “1. That recently the affiant has fy formalistic requirements of the Idaho Ketchum, moved from Idaho to Winnet- judicial system. Bluntly put, Cudahy’s ka, Illinois, where she now maintains an counsel will see the clearly Court as flavor- apartment for herself and her child who ing opinion its to show a timely request as requires attention and cannot be left untimely. impossible alone so that it is for the affi- announced, After the award was ant to attend the on December sought vacating an order it and Smith sought an confirming. appeal order In the engaged “2. The affiant is presently record, R. at is the brief of Smith’s in efforts to locate employment she is counsel, Campion, Mr. which clearly and to not now and is employed, therefore un- the point accepts that a postponement was expense trip able to afford the of a sought by Mr. Rolzitto’s letter of November 5, Idaho to attend a hearing on December 16th on behalf of Mrs. Cudahy. Does he No, contend it inadequate? that and “3. That the affiant believes that af- on the contrary, having knowledge asserts ter she employment has located and has that Mr. Davis denied “by telephone” if it — income it will be for her to possiblе that you please. R. at 249. Formality obviously arrange pay for care for her child and required. was not Mr. Campion states expenses the arbitra- of travel attend therein that further letter ... dated “[a] tion of this matter at a later date. 30, 1978, November reiterated that Mrs. “4. That it would work an undue again would not be available hardship compelled her to be added that “Mr. Davis informed counsel hearing attend a before convenient ar- hearing that the postponed”— would not be rangements can be made for the care of declaring but not how this information was gainful her child and before she has em- on, passed complaining any supposed of ployment. R. informality. at 249. prej- “5. That the affiant knows of no It would unduly lengthen already long will if udice to the claimant which result opinion to argument set forth the of that postponed hearing in this matter brief,

trial court and it should suffice to unfairly not until a time when it will merely lay out the fact it made no prejudice her.” having any objec- contention of filed Smith requires tion requested postponement to the To vacate an arbitration award ‍‌‌​​​​‌​‌‌​​‌‌‌​​‌‌​‌​‌​​‌​‌‌​‌‌​​‌‌‌‌‌​​​‌‌​​‌‌‍—nor did refused to proof it contend that had claimed arbitrators Smith “[t]he prejudice which sufficient cause postpone hearing upon would befall him if Mrs. ” 7- Cudahy were to .... I.C. sixty-day being have had the shown therefor §

121 Thus, Idaho, 912(a)(4). question Any judge given is whether a two-week “sufficient notification that a was unavailable justify cause” to a continuance and fami- for a because of financial was shown by appellant. Historically this difficulties, ly would order a continuance always has included prejudice the issue of prejudice save of undue for considerations to the party. For reasons hereinafter tactics, neither of dilatory or intentional forth, set I am unable to find substance which As a matter were raised Smith.6 opinion upholds Court’s which reciprocity, had been allowed requested postponement, denial of the judgment aside a default setting order mystified, amazed, am appalled at the him, day his given and was thus summary manner in which places the Court court, judge’s undoubtedly because of the its due process stamp approval on such process right deference to due Smith’s conduct. reso- present dispute prior his side of the As an alternative judicial process, right lution. Denial of the to be heard Thorgaard Plumbing Heating v. & Co. extraordinary only allowed most 126, County King, 71 426 P.2d Wash.2d Georgia Finishing cases. North Co. v. See (1967); 828 Pyramid Staklinski v. Electric 601, 719, Di-Chem, Inc., 42 419 95 U.S. S.Ct. Co., 565, 6 App.Div.2d 20 180 N.Y.S.2d Shevin, (1975); 407 L.Ed.2d 751 Fuentes v. (1958), arbitration de-emphasizes many pro- 67, 1983, 556, reh’g 92 32 L.Ed.2d U.S. S.Ct. cedural formalities in favor a time and 902, 177, denied, 34 409 93 S.Ct. U.S. money-saving system of effective conflict (1972); Family L.Ed.2d 165 v. Fi- Sniadach Thorgaard, supra; resolution. Layne-Min- 337, 1820, Corp., nance 395 89 23 U.S. S.Ct. Regents nesota Co. v. of Min- University (1969); Higginson, L.Ed.2d 349 Nettleton v. nesota, 284, 266 Minn. 123 371 N.W.2d 87, accord, (1977); 98 Idaho 558 1048 P.2d (1963); Vegetable Pacific Corp. Oil v. C.S.T. Co., 600, Mitchell W.T. 416 94 Grant U.S. Ltd., 29 (1946); Cal.2d 174 P.2d 441 (1974). 40 L.Ed.2d 406 In the S.Ct. Am.Jur.2d, Award, Arbitration and bar, § appel- case at the arbitrator’s denial of (1962). Although universally applica- lant’s request effectively for a continuance ble, certain types particular- of conflicts are deprived any opportunity her of to be ly amenable to the process. hearings heard. If are to ac- Notwithstanding judi- viable, its isolation from the seeking commodate individuals ef- process, resolution, cial it is imperative that arbitration fair ficient means of conflict proceedings adequately protect the substan- the rule and play impartiality must be procedural tive and rights exception. not the Can this Court condone Airlines, involved. Tombs v. an action an аrbitrator which so substan- Northwest Inc., tially rights violates the of one of the (1973). Wash.2d 516 P.2d 1028 involved, i.e., right ties to be heard at In order to ensure protection that is enforced, hearing? today, I arbitration Until legislature has seen fit to thought would have not. incorporate provisions allowing judicial for review within the Idaho Uniform Arbitra- Complexity IV. The Issue Act, (1979). (I.C. tion I.C. 7-901—7-922 §§ 7-912, award; 7-913, Vacating an I.C. § untimely § Because it is said to have been award; Modification or corrections of I.C. made, refuses to consider Cu- the Court 7-919, Appeals.) Regardless judicial of § argument complexi- further that the dahy’s supervision is it incumbent those in precludes arbitration where ty of the action charge conducting of proceed- arbitration cannot be com- to the action ings degree to maintain a of fairness at the arbi- pelled by to arbitrate or be bound equal Although argument least to that which is found in a tration decision. made until appear formal court of law. does not to have been Rules, thereby denying Cudahy right of the 6. The unfairness arbitrator’s refusal postponement compounded of the arbitrator. allow have voice in the selection I, comply part supra. the AAA did not its own fact that See 122

Cudahy’s Motion for Reconsideration (3) indemnification of third-party plain Order Confirming Award, the Arbitration I tiff by third-party defendant was una do not believe justified the Court is in side- vailable until a determination of liability stepping such an important issue. rec- occurred; (4) initial action had the third ord is clear that arbitrability sought party’s subject co-defendants were not court, raised in the punted district who arbitration; (5) the arbitration award could to the AAA tribunal —who did rule it not bind the majority parties; and was an yet passed never on it. The issue — (6) the indemnity third-party claim the cases of this Court legion are wherе it has plaintiff against third-party defendant passed on issues which were raised in the indemnity did not arise out of a contractual court, trial a recent example of which is 553; clause. 240 N.W.2d at contra Hamil Haeg City Pocatello, 315, v. of 98 Idaho 563 ton Life Insurance Co. v. National Republic (1977). P.2d 39 On the contrary, the Court Co., (2d Life Insurance 408 F.2d 606 Cir. properly refuses to hear an issue not raised 1969); Martin K. Eby Construction Co. v. court, in the trial and sought to be raised Arvada, Colo., City of 522 449 F.Supp. for the appeal. first time on Not this case. (D.Colo.1981). Following consideration of Several courts opportunity have had the the six factors the Minnesota court conclud to examine the issues presented by an arbi- ed that: tration in the context of multi- “The basis for the favored status which party litigation. Concrete, In Prestressed enjoys in this court— usually Peterson, Inc., Inc. v. Adolfson & 308 Minn. generally expedites that it the settlement 20, (1976), 240 N.W.2d 551 the Minnesota disputes simply, clearly, inexpen- and Court, Supreme noting majority rule sively just present is not in this case. — generally encouraged arbitration is Where would increase rather judicial tribunal, an alternative to a Ford delay, complexity, than decrease and Gorthon, Motor Co. v. Maria 397 M/S costs, it should not receive favored treat- (D.Md.1975); F.Supp. 1332 Leeward Bus ment.” 240 N.W.2d at 553. Honolulu, Co. v. City County 58 (1977), Haw. 564 P.2d 445 further recog- question parties represented Without nized that this dictate must frequently appeal complex in this are involved in a light considered in of the equally favored dispute involving multi-claim several other position of promoting “the efficient and parties, compelled none of whom can be expeditious resolution of controversies underlying arbitrate their claim. The issue facilitating joinder of all related involved in the main action concerns liabili- E.g., claims.” 240 N.W.2d at 553. Jeffer- ty remaining required construction costs Contractors, son County Barton-Douglas appellant’s for the house. Al- completion of (Iowa 1979). purpose N.W.2d 155 though appellant Cudahy has stated several joinder claims and consoli- claim third-party causes of action in her dation multiplicity of trials is to avoid Smith, he unlikely it is respondent duplication actions and of ef- unnecessary a determi- will be found liable to her unless forts Branom litigants. courts and See nation is made in the main action that she Idaho, Inc., v. Smith Frozen Foods of costs. responsible completion (1961); Idaho 365 P.2d 958 Nelson v. Insurance, Ronald W. Liese & Associates Co., Freight Inland Motor 60 Idaho Co., the Inc. and Pacific Insurance United (1939). P.2d 790 subject are not third-party co-defendants Concrete, supra, The court in Prestressed Loomis, Inc. or the arbitration. Nor can faced with a fact situation similar to the bound the arbitra- Ronald W. Liese be bar, following factors as case at isolated the tion decision. (1) a for their decision: all foundation poten- courts have focused on Other compelled involved could not be arbitrate; presented tial for inconsistent results (2) princi- issues involved arbitration; affecting issues subject decisions pal action were

123 Vicik, multi-party litigation. Cudahy J.F. Inc. v. 99 the issues between Audrie and John Ill.App.3d 55 contempo- Ill.Dec. 426 N.E.2d be decided in district court (1981); County, supra. Jefferson counter-claims, claims, raneously with all court, Vicik realizing multi-party ac- and cross-claims. involving tions intermingling claims and re- I dissent. respectfully lationships among the parties particu- are larly amenable to inconsistent determina- APPENDIX tions, decided policies joinder favoring a Appended copy hereto is Con- outweighed policies favoring arbitration. Industry struction Arbitration Rules of 261; 426 N.E.2d at see County, Jefferson these rules Hopefully, availability AAA. supra. The hesitancy towards inconsistent may understanding be of some assistance in justified results can on the judi- basis of why my views do not coincide with those of cial economy prejudice least, involved in the Court. At for those who dispute. par- The latter is ticularly germane might sign containing provision in the contracts present situation. judicial to submit otherwise controversies to Following our reversal summary tribunal, the AAA there will some access judgment order by the district against to the applicable rules —none of which were appellant Cudahy, Cudahy, Loomis v. available to Audrie when Smith Idaho (1980), P.2d 128 pending signature printed obtained her to an AAA instance, our decision in this the trial court form contract which made reference to ar- bifurcated the Loomis-Cudahy trial from bitration. the third-party actions, over ob- jection. The therefore, trial court effec-

tively appellant’s eliminated defense to AMERICAN ARBITRATION Loomis’ claims based upon respondent’s lia- ASSOCIATION bility. Loss of her against defense Loomis voluntary Arbitration is the submission of forced her to settle the claim out of court. a dispute per- to a disinterested person Appellant’s claim respondent Smith sons for final determination. And to precluded is by the majority’s decision to- achieve orderly, expeditious economical and day. only Her remaining potential relief is arbitration, in accordance with federal and from Liese & Associates or United Pacific. laws, state the American Arbitration Asso- Liese, however, Mr. has recently filed bank- ciation is available ‍‌‌​​​​‌​‌‌​​‌‌‌​​‌‌​‌​‌​​‌​‌‌​‌‌​​‌‌‌‌‌​​​‌‌​​‌‌‍to administer arbitration ruptcy in Montana and I be surprised would cases under specialized various rules. to find Liese & Associates in a much better The American Arbitration Association position. It is аpparent that Audrie Cu- throughout maintains the United States dahy’s avenues of relief are rapidly dwin- consisting National Panel of Arbitrators dling. Had the district court originally de- experts in all professions. By trades and nied arbitration based the need for arranging for arbitration under Con- trial, one multi-party it likely the entire Rules, Industry struction Arbitration dispute would have been resolved several may ties obtain the services of arbitrators years ago. Certainly, it is impossible to who are familiar with the construction in- second-guess retrospect what outcome dustry. might have occurred if a different course had been charted earlier litigation. The American Arbitration Association My however, only purpose, is to indicate the shall establish and maintain as members of prejudice amount of appellant has encoun- its National Panel of Arbitrators individu- tered district court’s action. competent als to hear and determine dis- putes administered under the Construction complexity and the inextricable na- Industry ture of the claims Arbitration Rules. The Associa- involved in this complete adjudication appointment mandates tion shall consider for of the case by a court of law. It my view that Panel Industry persons Construction recom- arbitration award should be vacated and Industry mended the Construction Na-

Section 5. NATIONAL PANEL OF AR- serve qualified by tional Committee as cooperation BITRATORS —In with the in the construc- experience virtue their Industry Construction Arbitration Commit- tion field. tee, the AAA shall establish and maintain a National Arbitrators, Panel of Construction not act as arbitra- Association does Panel, hereinafter called the ap- and shall tor. Its function is to administer arbitra- point an arbitrator or arbitrators therefrom agreement tions in accordance with providеd. hereinafter A neutral arbitra- from and to maintain Panels tor selected by mutual choice of both may which arbitrators be chosen ties appointees, or their or appointed by designated, Once the arbitrator decides AAA, arbitrator, binding. final and hereinafter called the issues and an award is whereas an arbitrator selected unilaterally is writ- agreement When an to arbitrate party one is hereinafter called party- contract, may it ten into a construction appointed arbitrator. The term arbitrator expedite peaceful settlement without may hereinafter be used to refer to one at all. necessity of to arbitration going arbitrator or to a of multiple Tribunal arbi- Thus, is a form of the arbitration clause trators. will. good insurance loss of Section 6. OFFICE OF TRIBUNAL— CONSTRUCTION INDUSTRY The general office of a is the Tribunal ARBITRATION RULES AAA, headquarters of the which may, how- Section 1. AGREEMENT OF PAR- ever, assign the administration of an arbi- TIES —The shall be deemed to have tration Regional of its Offices. made these part Rules a of their arbitration Section 7. INITIATION UNDER AN agreement whenever they provided have ARBITRATION IN A PROVISION CON- for arbitration under the Construction In- TRACT —Arbitration under an arbitration dustry Arbitration Rules. These Rules and provision in a contract shall be initiated in any amendment thereof shall apply in the manner: following form obtaining at the time the arbitration The initiating shall, party within the time is initiated. specified contract, if any, file with

Section 2. NAME OF TRIBUNAL— the other party a notice of an intention to Any Tribunal constituted arbitrate (Demand), which notice shall con- the settlement of their under these tain a setting statement forth the nature of Rules shall be called the the dispute, involved, Construction In- the amount if any, dustry Tribunal, Arbitration remedy sought; hereinafter and shall file two called the copies Tribunal. of said nоtice with any Regional Of- AAA, fice of together copies with two Section 3. ADMINISTRATOR —When provisions of the contract parties agree to arbitrate under these and the appropriate filing provided fee as Rules, or they provide when for arbitration Section 48 hereunder. by the Association, American Arbitration give AAA shall notice of filing such AAA, hereinafter called and an arbitration to the other party. A upon whom the hereunder, is initiated they thereby consti- demand for arbitration is made file an may tute AAA the administrator of the arbitra- answering statement duplicate with the tion. The authority and duties of the ad- AAA within seven days after notice from prescribed ministrator are AAA, simultaneously sending a copy of the parties and in these Rules. the other party. If a monetary claim is Section 4. DELEGATION OF made in the answer the appropriate admin- DUTIES —The duties of the AAA under provided istrative fee in the Fee Schedule these Rules may be carried through out shall be forwarded to the AAA with the Administrators, Tribunal or such other offi- answer. If no answer is filed within the cers or committees as the may time, AAA direct. stated it will be treated as a denial of 15 shall be to 13 or Section

pursuant Section for the neutral, disqualification to subject the claim. Failure to file an answer shall 19. If the operate delay specified to the reasons Section arbitration. an names arbitra- agreement parties of the 8. Section CHANGE OF CLAIM OR ap- other method of specifies any tor or the filing COUNTERCLAIM —After arbitrator, spe- if parties the pointing counterclaim, claim or if either de- party writing, such arbitrator cifically agree any sires to make new or different claim or subject disqualification to shall not be counterclaim, writing same shall be made in said reasons. AAA, and filed with the copy and a thereof shall be mailed tо party the other who shall Section 13. APPOINTMENT FROM period have a days of seven from the date appointed the have not PANEL —If mailing of such within which file an provided any and have not arbitrator However, answer with the AAA. after the appointment, method of the arbitra- is appointed arbitrator no new or different appointed following tor shall be man- claim may or counterclaim be submitted Immediately filing ner: after the of the without the arbitrator’s consent. Submission, Demand or AAA the shall sub- simultaneously party mit to each to the Section 9. A INITIATION UNDER dispute persons an identical list of names of any existing SUBMISSION —Parties to dis- party chosen from the Panel. Each pute may commence an arbitration under days shall have seven from the these by filing Rules at any Regional Office mailing date in which any to cross off (2) two copies of a agreement written objects, names to which it number the re- arbitrate under (Submission), these Rules names signed maining indicating pref- the order of the It shall contain a erence, and return the list to the AAA. If statement of the matter the dispute, a party does not return the list within the amount involved, of money any, if and the time specified, persons all named therein remedy sought, together with appropri- shall be acceptable. deemed among From ate filing fee as provided in the Fee Sched- persons who have approved been on ule. lists, both and in accordance desig- with the Section 10. PRE-HEARING CONFER- nated order of preference, mutual the AAA ENCE —At request or at shall invite the acceptance of an arbitrator the discretion of the AAA a pre-hearing to serve. If fail agree upon conference with the administrator and the any of persons named, acceptable or if parties or their counsel will be schedulеd in act, arbitrators are unable any or if for appropriate cases arrange for an ex- other reason the appointment cannot be change of information stipulation made lists, from the submitted the AAA of uncontested facts so as to expedite shall power have the to make appoint- arbitration proceedings. ment from other members of the Panel 11. Section FIXING OF LOCALE —The without any submission of additional parties may mutually agree on locale lists. where the arbitration is to be held. If Section 14. DIRECT APPOINTMENT party requests that the a hearing be held in BY the agreement PARTIES —If specific locale and the other files no party parties names an specifies arbitrator or a objection days thereto within seven after arbitrator, method of appointing an request notice of the to such mailed designation or method shall be followed. ty, requested. the locale shall be the one If The appointment, notice of with name and party objects requested by to the locale arbitrator, address of such shall be filed party, power the other the AAA shall have with the AAA by the appointing party. to determine the locale and its decision shall Upon appointing such binding. be final and party, the AAA shall submit a list of mem- QUALIFICATIONS AR- Section OF bers from the Panel from which Any appointed may arbitrator make appointment. BITRATOR —

dispute shall be heard and determined arbitrators, three AAA, If unless specifies period in its discretion, time within which an arbitrator shall be directs that a single or arbitrator appointed, and to make such any party fails greater a number of arbitrators appoint- be within the AAA appointment period, ed. shall make the appointment. 18. Section NOTICE OF ARBITRATOR period specified If no of time is in the ap- OF APPOINTMENT —Notice of the agreement, AAA notify par- the shall the arbitrator, pointment of the whether mutu- ties to make the if within appointment and ally appointed the by parties by or the days mailing seven after of such notice such AAA, by shall be mailed to the arbitrator appointed, arbitrator has not been so the AAA, together copy the with a of these AAA shall make the appointment. Rules, signed acceptance and the of the Section 15. APPOINTMENT OF ARBI- prior opening arbitrator shall be filed to the TRATOR BY PARTY-APPOINTED AR- the hearing. first parties appoint- the have BITRATORS —If Section 19. DISCLOSURE AND CHAL- ed their party-appointed arbitrators or if LENGE PROCEDURE —A person appoint- either or both of them have been appointed ed as neutral arbitrator shall disclose to the provided as and autho- Section have AAA any likely circumstances to affect his appoint rized such arbitrator to and arbitra- or her impartiality, including or any bias specified appoint- tor within a time and no any personal financial or interest in the ment is made within such time or result of the arbitration any past or or agreed thereof, extension the AAA shall present relationship with the parties or appoint an arbitrator who shall act as infor- Upon receipt their counsel. of such Chairperson. other mation from such arbitrator period If no of time is specified ap- for source, AAA shall communicate such the pointment of the third arbitrator the and and, if it deems parties, information to party-appointed arbitrators do not make the so, to do to the arbitrator and appropriate it appointment days within seven from the Thereafter, AAA shall deter- others. date of appointment party- of the last be dis- mine whether the arbitrator should arbitrator, appointed appoint the AAA shall of its qualified parties inform the and shall Chairperson. the arbitrator who shall act as decision, shall be conclusive. which parties agreed par- If the have that their any arbi- 20. VACANCIES —If Sectipn ty-appointed appoint arbitrators shall refuse, die, withdraw, resign, trator should Panel, arbitrator from the the AAA shall perform be unable to disqualified be arbitrators, party-appointed furnish to the shall, office, proof on the AAA duties of prescribed manner Section it, vacant. the office satisfactory to declare Panel, ap- list selected from the filled in accordance Vacancies shall be pointment of the arbitrator shall be made and of these Rules applicable provisions prescribed in such Section. unless the shall be reheard the matter ARBI- 16. NATIONALITY OF Section agree ties shall otherwise. ARBI- IN INTERNATIONAL TRATOR TIME AND PLACE —The 21. Section is a na- one of the TRATION —If place time and shall fix the arbitrator than country tional or resident of mail to each hearing. The AAA shall each shall, States, the arbitrator the United days five at least party notice thereof party, appointed be of either advance, by mutual unless the oth- country the nationals of a among from modify the notice or agreement waive such er than that of terms thereof. ARBITRA- OF NUMBER Section BY 22. REPRESENTATION (cid:127)Section does the arbitration TORS —If represented Any party may are unable or the specify COUNSEL — so intending to be party A by counsel. arbitrators, number of agree as PROCEED- 29. ORDER OF

Section and notify by shall the other shall represented hearing opened INGS —A arbitrator, of coun- the name address where the AAA of and of the filing of the oath set the date days prior sel three recording place, at least and required, is first for the at which counsel presence hearing, time and date counsel, is initiated appear. When if parties, and of the arbitrator counsel, replies an attorney or where receipt the arbitrator any, party, the other such notice is deemed answer, if claim the statement given. have been any. Section 23. STENOGRAPHIC REC- of beginning may, arbitrator at the The necessary ORD —The AAA shall make the clarifying hearing, the ask statements arrangements for the a steno- taking of involved. the issues graphic record is re- whenever such record present then complaining party The shall quested aby party. requesting party witnesses, shall claims, and who proofs its parties or pay shall the such record cost of or other examination. questions submit to provided as in Section 50. its present defending party shall then Section 24. AA INTERPRETER —The defenses, witnesses, who shall and proofs shall make the arrangements for necessary questions or examination. submit other the services of an the re- interpreter upon but vary may procedure The arbitrator quest of one or both who shall parties, equal opportunity shall afford full and assume the cost of such services. ma- presentation any for the of the Section 25. AT HEAR- ATTENDANCE proofs. terial or relevant having INGS —Persons a direct interest Exhibits, party, when by offered either the arbitration are entitled to attend hear- may be received the arbitra- by evidence ings. The arbitrator shall otherwise have tor. power the require any the retirement of all witnesses The names and addresses of testimony witness or witnesses during the shall be made and exhibits in order received of It discretionary other witnesses. shall be the record. part of with the arbitrator to propri- determine the ety of the any persons. attendance of other THE 30. IN Section ARBITRATION law the OF A PARTY —Unless ABSENCE 26. Section ADJOURNMENTS —The provides the contrаry, adjourn arbitrator may hearing, the and any party, may proceed in absence of adjournment must take such when all of who, notice, or present due to be after fails parties agree thereto. award adjournment. an An fails to obtain proceeding Section OATHS —Before aof solely shall not be made on the default hearing first or with the examina- require The arbitrator shall party. file, may tion of the each arbitrator take an evidence ty present who is to submit such office, law, if oath of shall required by making of an necessary as deemed for the do so. The arbitrator witness- may require award. testify by es to under oath administered or, any duly qualified person required by if 31. EVIDENCE —The Section they or demanded shall do such evidence desire party, may law either offer as such evidence produce so. shall additional 28. MAJORITY DECISION— necessary to may Section the arbitrator deem arbitra- is one dis- understanding there more than and determination of the Whenever be must law to tor, of the arbitrators An arbitrator authorized pute. all decisions so may must or do majority. The award witnesses documents subpoena least a by at indepen- or majority any party unless by at least a also be made judge of dently. The arbitrator shall be the required all expressly is the concurrence admissibility of evidence offered by law. agreement or by the arbitration of briefs. If receipt arbitrator for the provided are to be filed as documents conformity legal rules of evidence receipt set for their 32 and the date shall not be Section necessary. All evidence shall receipt for the is later than that set be taken in presence of all of the arbi- the date of briefs, the later date shall be trators parties, and all of the whеre except within hearing. The time limit closing is absent in default or has required to make which the arbitrator right waived his or her present. run, in the ab- award shall commence to Section 32. EVIDENCE BY AFFIDA- parties, agreements by sence of VIT AND OF FILING DOCUMENTS— hearings. closing of the upon the may The arbitrator receive and consider affidavit, giving evidence of witnesses it HEAR- OF 36. REOPENING Section such weight appropriate as seems after con- hearings may reopened INGS —The any objections sideration of made to its will, upon application at the arbitrator admission. time before the award at All documents not filed with the arbitra- hearing reopening made. If the hearing, arranged tor at the but for at the making of the award prevent would subsequently by agreement agreed upon by time specific within the parties, the shall be filed with the AAA for of which the parties in the contract out to All parties transmission the arbitrator. arisen, not may the matter controversy has opportunity shall be afforded to examine agree upon parties unless the reopened, be such documents. limit. When no of such time the extension 33. contract, Section INSPECTION OR INVES- the is fixed specific date finding arbitrator it neces- TIGATION —An hearings, may reopen arbitrator sary inspection investigation to make an or from the thirty days shall have arbitrator arbitration, in connection with the shall di- closing hearings within reopened rect the AAA to so advise the The which to make an award. arbitrator shall set the time and the AAA Section 37. WAIVER OF ORAL HEAR- notify parties shall Any party thereof. written parties may provide, by INGS —The who so may present desires be at such in- agreement, hearings. for the waiver of oral spection investigation. or In the event that agree If the are unable to as to the parties one parties or both are present at the procedure, specify the AAA shall a fair and

inspection or investigation, the arbitrator equitable procedure. shall make a report verbal or written to the parties Any and afford them an Section 38. WAIVER OF opportunity RULES — comment. proceeds with the arbitration party who 34. OF

Section CONSERVATION or re- knowledge any provision after that may PROPERTY —The arbitrator issue quirement of Rules has not been com- these may necessary such orders as be deemed objec- plied with and who fails to state an safeguard property subject which is the writing, shall be deemed to tion thereto in without prejudice matter of the arbitration right object. have waived the or to the final rights parties OF TIME— Section EXTENSIONS dispute. determination of the parties may modify any period of time Section 35. CLOSING OF HEAR- agreement. good The AAA for by mutual arbitrator shall specifically INGS —The in- period extend of time estab- may any cause quire parties whether they any have Rules, except lished these the time further to offer or proofs witnesses to be making notify the award. The AAA shall Upon receiving negative heard. replies, the time any such extension of hearings arbitrator shall declare the closed its reason therefor. and a minute thereof shall be recorded. If filed, hearings briefs are to be shall be Section 40. COMMUNICATION WITH declared closed as of the final date set ARBITRATOR AND SERVING OF NO-

during arbitration, the course of the arbitrator, upon request, shall be no communication their may TICES —There set forth the terms of agreed settlement and an arbitrator between the an award. or other oral hearings. Any than at oral written communications from Section 45. DELIVERY OF AWARD AAA shall be directed to the arbitrator TO accept legal PARTIES —Parties shall delivery placing for transmittal to the arbitrator. of the award the award or a true copy thereof in the mail pro- to an which party Each AAA, party addressed to such or its vides for arbitration under these Rules shall at the attorney last known address or any pa- to have consented that deemed personal service, within or without the state pers, process necessary proper notices or wherein the arbitration is to be held of an arbi- for the initiation or continuation (whether party such be within or without under these Rules and for tration America), provided United States of for the action in connection therewith or that reasonable to be heard opportunity award made entry judgment on regard with granted thereto has been such party thereunder be served such may party. party to such or its attor- by mail addressed Section 46. OF DOCU- RELEASE by person- ney at the last known address FOR PROCEED- MENTS JUDICIAL service, state al within or without shall, upon INGS —The AAA the written is to be held wherein the arbitration party, party, of a furnish to such at or without (whether such be within its expense, any pa- certified facsimiles of America), provided the United States pers possession in the AAA’s may heard opportunity reasonable to be required judicial proceedings relating such regard granted thereto has been the arbitration. party. Section 47. APPLICATIONS TO 41. TIME Section OF AWARD —The judicial COURT—No proceedings par- aby award shall be promptly by made the arbi- ty relating subject to the matter of the and, trator the agreed by unless otherwise arbitration shall be deemed a waiver of the parties, law, specified by not later than party’s right to arbitrate. thirty days closing from the date of the The AAA is not a necessary hearings, hearings or if oral have been judicial waived, proceedings relating from transmitting the date of arbitra- tion. final proоfs statements and to the arbitra-

tor. Parties to these Rules shall be deemed to AWARD —The 42. FORM OF Section have consented judgment upon the be writing and shall award shall be in award rendered by the arbitrator(s) may be byor at sole arbitrator signed either entered in any Federal or State Court hav- more than one. if there be majority least a ing jurisdiction thereof. required' in the manner It shall be executed Section 48. ADMINISTRATIVE law. FEES —As a nonprofit organization, OF AWARD —The 43. SCOPE Section AAA shall prescribe an administrative fee remedy or relief any may grant arbitrator schedule and a refund schedule compen- within equitable just is which sate it for the cost of providing administra- parties. of the of the terms tive services. The schedule in effect at the award, assess arbi- arbitrator, shall time of filing or the time of refund shall be provided as expenses fees tration applicable. favor of or in equally 48 and 50 Sections administra- any event advanced and, in the fees shall be The administrative any party AAA, in are due accord- expenses fees or initiating party parties tive by the schedule, AAA. favor of the fee administrative with the ance by the arbi- apportionment subject to final SETTLE- UPON 44. AWARD Section in the award. trator their settle MENT —If parties. with the The terms of compensa- When a matter tion of neutral settled, arbitrators withdrawn or on a Tribunal the refund shall shall be be made in identical. accordance with the refund schedule. Section 52. DEPOSITS —The AAA may AAA, in the event of extreme hard- require deposit in advance ship on part any party, may defer or such sums of money it deems necessary reduce the administrative fee. to defray the expense of arbitration, Section 49. FEE WHEN ORAL HEAR- including the arbitrator’s fee if any, and INGS ARE WAIVED —Where all oral hear- shall render an accounting to ings are waived undеr Section 37 the Ad- and return any unexpended balance. ministrative Fee Schedule shall apply. Section 53. INTERPRETATION AND expenses Section EXPENSES —The APPLICATION OF RULES —The arbitra- paid witnesses for either side shall be by tor shall interpret and apply these Rules the party producing such witnesses. insofar as they relate to the arbitrator’s record, if stenographic The cost of the powers and duties. When there is more thereof, made, any transcripts and all than one arbitrator and a difference arises prorated equally be between the shall among them concerning the meaning or ap- other- ordering copies they unless shall ties plication Rules, of any such it shall be de- paid agree wise and shall cided aby majority vote. If that is unob- reporting responsible parties directly to tainable, either an arbitrator or a party agency. may refer question to the AAA for final arbitration, in- expenses All other decision. All other Rules shall interpret- other ex- cluding traveling and required applied ed and by the AAA. repre- of AAA penses of the arbitrator and sentatives, expenses witness

or the cost any proofs produced at the arbitrator,

direct shall be parties, borne equally by they unless 656 P.2d 1383 otherwise, agree or unless the arbitrator in Bentel, John BENTEL and Charlene expenses the award assesses such or any Wife, ‍‌‌​​​​‌​‌‌​​‌‌‌​​‌‌​‌​‌​​‌​‌‌​‌‌​​‌‌‌‌‌​​​‌‌​​‌‌‍al., Husband and et part specified thereof party or Plaintiffs-Appellants, FEE —Un- 51. ARBITRATOR’S Section BANNOCK, compensa- parties agree to terms

less COUNTY OF State Idaho, subdivision, al., political tion, of the National Panel members et will serve without Defendants-Respondents. Arbitrators Construction of ser- days for the first two compensation No. 13562. vice. Supreme Court of Idaho. based Thereafter, shall be compensation involved of service upon the amount Jan. hearings. appropriate An

the number will be arrangements and other

daily rate with the administrator

discussed arbitrator(s). If the

ties and compensation, to the terms agree

fail to established rate shall be appropriate writing AAA, and communicated compensation for the arrangement

Any through the be made shall

of an arbitrator directly by the arbitrator

AAA

Case Details

Case Name: Loomis, Inc. v. Cudahy

Court Name: Idaho Supreme Court

Date Published: Oct 1, 1982

Citation: 656 P.2d 1359

Docket Number: 13291

Court Abbreviation: Idaho