Washington Court of Appeals to Supreme Court: Bring It On!

On Monday the Supreme Court issued Nitro-Lift Technologies, L.L.C. v. Howard, a bit of a smack down to the Oklahoma Supreme Court. The short version: Two parties had a contract dispute, the contract had a mandatory arbitration clause, one party said the entire contract was unenforceable, and the Oklahoma Supreme Court held–despite Supreme Court precedent to the contrary–that the Oklahoma courts had the power to determine the enforceability of the contract regardless of the arbitration clause.

As Brian Rogers explained: “The Supreme Court was not impressed.”

McKayla Maroney after hearing the Oklahoma Supreme Court disregarded the FAA

Why? Well, because according to the Court “[t]he Oklahoma Supreme Court’s decision disregards this Court’s precedents on the FAA.” Continue reading


Daily Decisions: The Competing Formalisms of Service

Morello v. Vonda (Division 2, April 24, 2012), is an interesting little case about service of process. However, since it interprets and applies former Mandatory Arbitration Rule 7.1, which subsequently has been materially amended, the case will be of little interest to anyone going forward. But hey, if you like service of process, read on! Continue reading

Daily Decisions: If the CBA States that the Arbitrator Can’t Award Attorneys’ Fees, then the Arbitrator Can’t Award Attorneys’ Fees (with One Exception!)

Washington State Department of Transportation v. Marine Employees Commission (Division 2, April 18, 2012), addresses an arbitrator’s power to award attorneys’ fees despite clear language in the parties’ collective bargaining agreement that each side should pay its own fees and costs. While the Court of Appeals held that fees could be awarded under such a CBA in the case of an unfair labor practice, that circumstance did not apply here. Accordingly, the Court vacated the arbitrator’s fee award. Continue reading

Daily Decisions: A Case About an “Unsightly and Barren Goat Enclosure”

I don’t think there is much new to discuss regarding Gander v. Yeager (Division 2, April 10, 2012), but it does involve some neighbors arguing about goats. So that’s something. And the case may be of some interest on the topic of appellate review of fee awards. Maybe. Oh, and the Chutzpah Doctrine makes an appearance as well, so there’s that. But anyway, on with the case…

Back in 2005, there was a boundary dispute out in Bainbridge Island between (1) the Ridingses and (2) Malcolm Gander and Melanie Keenan. The Court refers to Gander and Keenan as Gander/Keenan “intending no disrespect.” I am going to refer to them as G/K, but I want to be clear that I don’t intend any disrespect either! The Ridingses and G/K settled their dispute pursuant to a written settlement agreement. The agreement provided that G/K shall not disparage the Ridingses and vice versa. Disputes regarding the agreement were subject to arbitration.

Four months after this settlement agreement, the Ridingses sold their property to Karen Keefe. Keefe then claimed that G/K began harassing her in violation of the agreement by, among other things, “operating ‘an unsightly and barren goat enclosure,’” “‘allowing the goats to bleat and cry for extended periods before feeding them,’” “putting goat waste along or very near the property line,” and “operating a chainsaw for extended lengths of time near Keefe’s home for no apparent purpose.” I hope that the chainsaw had nothing to do with the goats. Continue reading

Daily Decisions: Two Kinds of Arbitration Waiver

The parties in River House Development v. Integrus Architecture (Division 3, March 15, 2012), had a contractual agreement to mediate or arbitrate their dispute.  But instead of seeking immediate mediation or arbitration, plaintiff RHD decided to serve and file a case in Superior Court.  Then, after settingto a trial schedule, exchanging discovery, and various discovery disputes, RHD filed for mediation and moved to stay the litigation and compel arbitration/mediation.  The trial court denied RHD’s motion.

The Court of Appeals decided a couple of important issues.  The first question was whether the trial court should have decided the issue of waiver, or whether that issue should have been determined by the arbitrator in the first instance.  The Court of Appeals recognized that issues of waiver by delay (i.e., missing a deadline under the relevant arbitration agreement) should be decided by the arbitrator.  However, the issue in this case was not delay, but whether RHD’s conduct by filing litigation effected a waiver of arbitration.  The Court of Appeals held that waiver by litigation conduct is an issue for the trial court, not the arbitrator.

The second question was, if the courts are to decide whether litigation-conduct waiver occurred, what standard should they employ in that inquiry?  The Court did not create a special test or set forth an enumerated list of facts.  Rather, the Court noted generally that waiver is the “voluntary and intentional relinquishment of a known right.”  In the arbitration context, waiver is caused by “conduct inconsistent with any other intention but to forego [the] right.”

Here, the trial court set forth the following facts as supportive of waiver, which the Court of Appeals listed with approval:  RHD was the plaintiff who initiated suit; RHD participated in discovery; RHD initially opposed the motion to compel discovery, rather than immediately move for a stay; RHD supplied a list of witnesses; RHD participated in the scheduling conference; and RHD “substantially delayed” in bringing its motion to compel, which prejudiced the defendant.