*1 Andreski v Ski Brule ANDRESKI, BRULE, TONY INC v SKI INC 8, 1991, May Marquette. Docket No. 128011. Submitted at Decided 22, 1991, July sought. appeal 9:20 a.m. Leave to Tony Andreski, Inc., brought an eviction in action for the 41st against Brule, Inc., Circuit Court Iron River National Bank, alleging comply failed to with a lease provision requiring the maintenance of insurance cov- ering premises. the demised Before commencement of the pursuant action the initiated common-law arbitration Following filing to an arbitration clause the lease. of the suit, announced, and before an arbitration was award plaintiff expressly writing revoked the arbitration clause of court, J., action, Payant, the lease. The John D. dismissed the finding principles that because common-law arbitration action, applicable had to unilater- clause, ally revoke the arbitration but had failed to do so in a timely plaintiff appealed. manner. The Appeals The Court of held: agreement 1. Either to a common-law arbitration agreement time award, regardless before an of which initiated the arbi- estopped tration. The was from and its agreement timely. 2. Nullification of the revocation of the arbitration on the basis that the each of the arbitrators of its revocation is not warranted under the facts of this case. Reversed and remanded. Griffin, P.J., concurring, public policy stated that the consid- erations that favored allowance of unilateral revocation of longer credible, common-law arbitration contracts are no public policy enforcing modem disfavors agreements, policy and that of unilateral revocation of common-law arbitration contracts should overruled Supreme Court. Petrucelli, Petrucelli & P.C. Vincent R. Pe- (by trucelli), Andreski, for Tony Inc. 190 Court Polich), (by Polich, for Ski Steve J. Steve J. P.C Brule, Inc. Tousig- Tousignant, (by P.C. Mark D. D.
Mark *2 nant), River Bank. for Iron National Sawyer Griffin, P.J., Weaver,
Before: JJ. granted court defendants’ J. trial Sawyer, complaint to to evict
motion dismiss agree- Inc., Brule, under a lease Ski defendant ment. The trial court’s decision upon based in the lease. Plaintiff arbitration clause contained appeals, and we reverse. property the of real is owner certain
Plaintiff September County. 7, 1976, On Iron located plaintiff’s predecessor the land interest leased options ten-year term, Brule a Ski ten-year terms. Ski for nine additional renew pledged security as its leasehold interest Brule for repayment Iron of a loan made defendant accepted Bank, Ski Brule’s National which River assignment of lease. dispute upon plaintiff’s
The instant based allegation materially a defendants breached requiring provision maintenance lease sufficient, insurance on the of effective premises. no- defendants a demised Plaintiff sent sixty days commenced in that suit would be tice time, At the same default was cured. unless plaintiff requested to a the matter be referred para- in accordance with “moderation committee” provided graph lease, of arising to be resolved under lease composed managing of the committee moderation Stambaugh, Bank of of the Commercial executives The Miners Bank, the Iron River Na- State Tony Andreski v Ski Brule op hearing A tional Bank of Iron River. of the moder- ation committee 13, was scheduled for November hearing plain- 1989, but the was not held because hearing tiff did not of receive notice and did appear. meeting The committee was resched- hearing uled for December but the was can- unavailability celled Brule because Thereafter, counsel. commenced the in- following filing stant suit, action expressly revoking sent a letter to defendants (moderation) clause of the lease. Following hearing, the trial court issued an opinion and order that concluded that the com- principles opposed arbitration, mon-law requirements statutory arbitration, applicable bar, to the case at and that under principles common-law arbitration has the provi- revoke an arbitration *3 court, however, sion an The also plaintiff timely concluded that not had revoked the provision obligated and, therefore, arbitration was (i.e., to submit the matter to arbitration to the committee). moderation conclusions, The trial court’s first two that this case involves common-law arbitration and that plaintiff right had the disputed appeal.1 clause, in
arbitration are not this only Rather, issue before us is whether correctly trial court not that concluded the arbitration had timely The revoked clause. trial court its reached conclusion on the basis that proceed- because had initiated arbitration ings already underway, estopped that 1 disagree expressed necessarily points While we do not with the in concurring opinion, we to address them decline us however, represent agree, an not decision. that that issue before We benefit common-law arbitration is consideration area would from renewed Supreme Court. App 343 revoking clause. thereafter
from disagree. We upon this Court’s decision relied
The trial court Tripp Excavating Contractor, Inc v Jackson in EE (1975), 221; 230 Co, 60 Mich NW2d concluding uni clause be an arbitration that Tripp laterally knowledge though does ac decision revoked. rule, is the common-law that that the the this Court decided in that case unambiguously revoked had defendant therefore, and, con clause arbitration common-law obligated to arbi the defendant was that cluded dispute. to the instant more concern Of trate dispute, that, com however, under the is the fact right principle party either has a mon-law right clause, revoke an agreement may exer common-law the announce time before cised no award at 243. Because ment of an award. Id. fact, case at bar been made had yet the moderation heard matter had not been committee, to re retained the still agreement. the common-law arbitration voke put court, on the the trial we no reliance Unlike the arbitra- it was who initiated fact that tion authority proceeding. We are aware support of the trial court’s conclusion estopped from initiates revoking thereafter adopt
Furthermore, such a not inclined to we are proffered reasons for rule. Plaintiff’s arbitration why suggestive agreement2 are proffered decision Two reasons have been basic *4 First, that claimed unviable, light procedure apparently of the inabil arbitration ity period committee a reasonable to assemble the moderation expressly clause that revoked the arbitration time. Plaintiff’s letter also that clause, in cites a a in the arbitration reason basic unfairness provide commit- of the moderation banks that members Ski v Brule Andreski op initially party a matter to to submit would against arbitra- thereafter decide arbitration and tion. plaintiffs position,
Specifically, meritorious, if is speedy requires resolution, in that one that plaintiff alleges have that defendants adequate insurance there maintain significant exposed conceivably fore, is adequate liability insurance is if financial losses accompanied by delays place. Given proceedings, unreasonable for it is not arbitration plaintiff to have reached the determination expeditious all, not, the most arbitration was after protect way its inter to resolve ultimately more it have been ests. While expedient arbi to have continued with tration, remains the fact that there it nevertheless legitimate party, why once hav reasons can be ing agreed initiated the arbitration
to or even process, may proceed to revoke the arbitration wish litigation. Accordingly, it would be estoppel principle inappropriate apply against merely initiated arbitration that arbitration is thereafter concludes rights protecting its no interests and chooses consistent with litigation instead. Accordingly, conclude that the common-law we acknowledged Tripp, supra, the rule that rule rights parties is most consistent with in a arbitration: either involved common-law agree- may, unilaterally, revoke an dealings Specifically, significant with Ski Bride. tee have financial letter, according sums of Ski Brule owes substantial banks, money if financial losses to all three which could suffer arbitration, the fact that Ski Brule’s Brule loses the president, as well as Polich, of The is a of the board of directors Steve member is to note that one of the banks Miners State Bank. We also herein, arbitrator, Bank, provide Iron River National a defendant security assignment for a loan the lease interest as has taken an made to Ski Brule. *5 190 Mich any of an the announcement time before ment at regardless initi- award, of which Therefore, revoca- the arbitration. ated at in the case tion of the arbitration timely. bar was argues trial court’s that the
Defendant bank also plain upheld on the basis decision should be agree properly revoked the arbitration tiff never ment, agreement the letter because of the members was not sent each posi support In of its the moderation committee. tion, Tripp, supra on at defendant bank relies quoted 2d, 5 Am Jur Arbitration which p 553, to make Award, §45, states that complete, thereof notice revocation of arbitration given We do not to the arbitrators. must be position. with defendant’s position accept First, if defendant’s even we requirement respect revoca- to the that notice of arbitrator, that would not tion sent to each be support at conclusion the case the trial court’s above, has the bar. As discussed any an- time before the revoke arbitration nouncement of an award. Because no arbitration by the moderation award has been announced any committee, in notice could cure defect sending by immediately the notice revocation could be before such award each arbitrator Accordingly, to dismiss suit announced. on this basis would be futility, an exercise dispatch immediately could appropriate notices and reinstate the suit.3
Furthermore, not convinced that the the we are appropriate remedy for a failure to 3Indeed, matter, upon receiving ruling, plaintiff, could for that rehearing dispatch immediately dismissal, the notices and then move be because the reason for the dismissal would true. Tony Andreski v Opinion of the Court revocation arbitrators of the arbitration is to litigation. certainly, While, dismiss the arbitra- point notified, should so tors not invest further essential some need matter,
time in is not achieving long as as party seeking revocation of arbitration has ex- pressly unambiguously expressed its intent to such no- *6 parties tice to the other mencement of a lawsuit. and involved the com-
Here, there can be no plaintiff expressly unambigu- and agreement ously renounced proceed litigation. Furthermore, to with decided notify there is no indication that the arbitrators in an attempt to allow arbitra- tors to make an award and allow to attempt thereafter to make a choice between ac- cepting proceeding litigation. or with award proceedings effectively stopped litigation, the commencement proceeded no further. Absent cir- suggest revoking party cumstances that notify did arbitrators of revocation of inequitable arbitration in order to obtain an ad- vantage opposing party, over the we see no reason nullify expressed unambigu- an otherwise ous revocation of arbitration because of a failure to
notify the arbitrators.4 reasons, For the above we conclude that agreement any could revoke the arbitration time before the announcement of an award the moderation committee and that did, fact, Accordingly, arbitrate. court trial erred in dismissing plaintiff’s complaint._ situation, appropriate revoking party might In an be liable for opposing party incurred costs or the arbitrators because of a promptly failure to not revocation. arbitrators This does appear to be an in the case at issue bar. 190 by Griffin, P.J. Concurrence proceedings for further and remanded
Reversed do not retain opinion. this We consistent with Plaintiif tax costs. jurisdiction.
Weaver, J., concurred. (concurring). I
Griffin, separately P.J. write Michigan’s express disagreement with ana- my doctrine of common-law arbitration chronistic unilateral of common-law allows contracts. An discussion of common-law arbitra excellent Excavating Tripp in EE Contrac tion is contained tor, Co, 60 Mich App Jackson 221, 243-245; Inc v (1975), wherein is noted that 230 NW2d arbitration were disfa contracts historically to be contracts were deemed vored. Arbitration operated to oust against public policy jurisdiction. of their traditional For courts reason, contract princi the courts modified normal ples to allow time before the ren
contract to arbitrate dering an arbitration award. *7 Tripp, supra 246- our Court by
As noted
247,
arguments
ago
of a
public
century
policy
today’s
no
world:
longer
are
credible
longer
are no
heavily
courts
case-loaded
parties,
jurisdiction.
Where the
jealous of their
adopted
speedy and inex-
a fair
have
pensive
ments
the courts to stand
we
disagree-
their
means
have
public policy
no
reasons
adjusted,
we see
way.
contrary
in their
On
public policy
of
in the
expression
a clear
have
provide
statutory
legislative
arbitration.
enactments which
Tripp decision,
years
In
sixteen
since
continued to
country
have
throughout
courts
Andreski v
by Griffin, P.J.
Concurrence
policy
public
recognize
that modern
agreements.
enforcing
See
disfavors
Anne
Co v Fraternal Order
Anne Arundel
Officers,
98, 103-110;
313 Md
Arundel Detention
(1988)
supra),
(quoting Tripp,
Petti
Although policy unilateral contracts is outdated and common-law unsound, rule of law has been well estab such a Michigan Chippewa Co v since Lumber lished (1890). Co, 116; 44 Ins 80 Mich NW Phenix argue the statements While one could Chippewa dicta, mere the doc Lumber Co were firmly trine is too entrenched to be overruled urge appellate however, I, intermediate court. this the Supreme Court to do so. respects, majority.
In I with the all other