Lesley G McCarthy v. Eugene Pallisco ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
LESLEY G. MCCARTHY, formerly known as UNPUBLISHED
LESLEY KEITH, October 6, 2016
Plaintiff-Appellee,
v No. 327647
Oakland Circuit Court
EUGENE PALLISCO, LC No. 2014-142351-CZ
Defendant-Appellant.
Before: SAAD, P.J., and JANSEN and M. J. KELLY, JJ.
PER CURIAM.
Defendant appeals as of right the trial court order denying his motions to vacate the
arbitration awards of two arbitrators, confirming those awards, and entering both awards as
judgments. We affirm.
I. FACTUAL BACKGROUND
Plaintiff filed the initial action against defendant in 2009. In February 2010, plaintiff and
defendant entered into a Confidential Settlement Agreement and Mutual Release (Agreement) in
the underlying lawsuit. The Agreement contained an arbitration provision, which provided that
“any dispute or the determination of any breach arising under this Agreement shall be submitted
and decided through statutory arbitration under MCL 600.5001 et seq.” The Agreement also
provided that “[t]he prevailing party shall be entitled to the recovery of his or her reasonable
costs and attorney fees, and the arbitrator’s fees.” Additionally, the parties agreed not to
disparage or harass each other. The Agreement appointed Joel Serlin as arbitrator and provided
for the appointment of a successor arbitrator if needed:
In the event Serlin is unable or unwilling to continue to serve in his role as
arbitrator, the Parties will mutually agree to Serlin’s successor. If the Parties are
unable to agree to a successor, then each Party will pick a successor, and the two
successors shall mutually pick a third successor who shall then be the sole acting
successor arbitrator to Serlin.
Plaintiff filed a claim for arbitration under the Agreement on July 19, 2010. Defendant
filed his first arbitration claim on October 29, 2010. Over the next four years, the parties
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engaged in what Serlin described as among the most highly contentious proceedings over which
he had ever presided. The parties submitted over 100 pleadings, motions, responses, and replies
to Serlin, and Serlin issued 28 separate decisions. Serlin noted that matters were complicated by
defendant having changed his legal representation five times, and by defendant having filed a
lawsuit regarding a matter that was already before the arbitrator, which he then refused to
dismiss on the arbitrator’s order.
Defendant filed his first motion to disqualify Serlin on July 10, 2013, which Serlin
denied. The two-day arbitration hearing was held on July 22 and July 23, 2013. Serlin issued
his decision on November 18, 2013. Serlin concluded that plaintiff did not breach the
Agreement and that defendant did not default on his payment obligations under the Agreement,
but that defendant “materially breached [the Settlement Agreement] by engaging in a concerted
course of vexatious and harassing conduct directed toward Plaintiff.” Serlin also concluded that
plaintiff was the prevailing party. Serlin’s award also clearly states that any claims not expressly
granted in the award were denied with prejudice. Thus, the award fully resolved all claims that
had been submitted to Serlin, except the amount of costs and fees to be awarded to plaintiff.
Serlin directed plaintiff to file a claim for her costs and fees within 21 days, which she did on
December 16, 2013.
On January 13, 2014, defendant filed objections to Serlin’s award, in which he contended
that plaintiff’s request for costs and fees should be denied in its entirety. Serlin concluded that
defendant was entitled to a hearing on the reasonableness of the costs and fees plaintiff claimed
and granted defendant leave to conduct limited discovery in that regard. On July 21, 2014,
defendant filed a second motion to disqualify Serlin. This time, defendant argued that Serlin
showed bias by failing to disclose certain relationships with attorneys formerly associated with
plaintiff’s counsel, and by not returning certain security documents held in escrow. He further
contended that Serlin had been accused of fraud or collusion in a former proceeding, although
the United States Court of Appeals for the Sixth Circuit held in favor of Serlin.
On August 21, 2014, Serlin denied defendant’s second motion to disqualify him, but
recused himself nonetheless. While Serlin “adamantly denie[d] any bias or impropriety in the[]
proceedings and [was] appalled at the deplorable tactics [defendant had] chosen to employ” in
this motion, he determined that to continue as arbitrator would “risk the potential appearance that
any future decisions adverse to [defendant would be] predicated on emotion and not the facts and
law.”
In August 2014, and again in September 2014, plaintiff filed with the court a complaint
and motion to confirm the arbitration award as a judgment. Defendant responded by filing a
motion for summary disposition, after which plaintiff also sought summary disposition, asking
the court to determine the amount of fees and costs to be awarded, and then to confirm Serlin’s
award and enter it as a judgment. On December 10, 2014, the trial court denied both motions
and postponed a decision on plaintiff’s motion to confirm the arbitration award as a judgment
“pending decision by a successor arbitrator after an evidentiary hearing on the outstanding
issue—the amount of damages (attorney’s fees, arbitrator fees, and costs) for plaintiff.” The
court further ordered that the successor arbitrator set an evidentiary hearing on the outstanding
issue by January 16, 2015. The parties appointed attorney Thomas Cranmer as successor
arbitrator.
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The hearing on costs and fees did not take place by the court’s deadline. The parties
reached a stalemate when defendant insisted on arbitrating issues other than the amount of the
award, and plaintiff refused to do so. Defendant filed a motion with the trial court on March 4,
2015, to compel arbitration and to modify the court’s December 10, 2014 order. At that time, the
arbitration hearing was scheduled for March 17, 2015. In a strongly worded opinion issued on
March 16, 2015, without oral argument, the court denied defendant’s motion and ordered the
parties to proceed with the previously scheduled March 17, 2015 arbitration hearing. Cranmer
promptly reinstated the hearing on costs and fees for March 17, 2015.
Defendant appeared at the designated time and place, but filed a motion with Cranmer for
a continuance based on insufficient time to prepare and another motion to set aside Serlin’s
decision. Cranmer denied both motions, and the hearing on costs and fees took place that day.
During the hearing, defendant argued again that plaintiff was not the prevailing party, and was
not entitled to any costs or fees, and, alternatively, that any award should be de minimis because
plaintiff’s evidence was unreliable and the amount sought was excessive.
Cranmer independently determined that plaintiff was the prevailing party, as Serlin had
expressly held. Additionally, he held that the fees of two of plaintiff’s attorneys were reasonable
under the governing caselaw regarding hourly rate and total hours worked. He disallowed all
additional hours because most of them were billed by Daniel McCarthy, who had been
prohibited by Serlin on June 23, 2011, from working on the case.1 Cranmer awarded plaintiff a
total of $229,956.90, which the court then confirmed and entered as a judgment. This appeal
followed.2
II. ANALYSIS
A. STANDARD OF REVIEW
“A trial court’s decision to enforce, vacate, or modify an arbitration award is reviewed de
novo.” Nordlund & Assoc, Inc v Village of Hesperia, 288 Mich. App. 222, 226; 792 NW2d 59
(2010). “[J]udicial review of an arbitration award nonetheless is extremely limited.” Fette v
Peters Constr Co, 310 Mich. App. 535, 541; 871 NW2d 877 (2015). A court may not review an
arbitrator’s findings of fact or the merits of the arbitrator’s decisions. Id. Courts may decide
1
Plaintiff is currently married to Daniel McCarthy.
2
As a threshold matter, plaintiff argues that this Court lacks jurisdiction over this appeal because
the May 11, 2015 order appealed from, among other things, denied defendant’s motion for relief
from a previous order without prejudice, and therefore was not a final order. Plaintiff contends
that an order entered on June 17, 2015, which clarified earlier orders, was the final order, and
that order was not timely appealed. We have considered this argument and determined that the
motion for relief to which plaintiff refers did not involve an actual claim, and is, therefore, not
the final order in the case. Jurisdiction attached when defendant filed his appeal on June 1, 2015,
within the 21-day appeal period, and was not affected by the subsequent order issued by the trial
court.
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only whether arbitration awards draw their essence from the parties’ agreement to arbitrate. Id.
If the court determines that an arbitrator “did not disregard the terms of his employment and the
scope of his authority as expressly circumscribed in the contract, judicial review effectively
ceases.” Id., quoting Police Officers Ass’n of Mich v Manistee Co, 250 Mich. App. 339, 343; 645
NW2d 713 (2002) (quotation marks omitted). Before the court may vacate an arbitration award,
“error, if any, must be evident from the face of the award and ‘so material or so substantial as to
have governed the award, and but for which the award would have been substantially otherwise.’
” Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich. 488, 497; 475 NW2d 704 (1991), quoting
DAIIE v Gavin, 416 Mich. 407, 443; 331 NW2d 418 (1982).
B. LEGAL PRINCIPLES GOVERNING ARBITRATION
The rights of the parties, as well as the scope of an arbitrator’s authority, are defined and
limited by the parties’ arbitration contract. Gordon Sel-Way, 438 Mich. at 496. Statutory
arbitration is currently governed by the Uniform Arbitration Act (UAA), MCL 691.1681 et seq.,
but these arbitration proceedings began on July 19, 2010, when the Michigan arbitration act
(MAA), MCL 600.5001 et seq., was still in effect. Therefore, this case is governed by the MAA
because the claims for arbitration were filed before the UAA went into effect on July 1, 2013.
Fette, 310 Mich. App. at 542. The MAA provided that arbitrations were to be conducted in
accordance with the Michigan Court Rules. Id.
The court rule governing arbitrations is MCR 3.602. This rule outlines the circumstances
under which a court may modify, correct, or vacate an arbitration award. See Gordon Sel-Way,
438 Mich. at 495. The grounds for invading an arbitrator’s decision, however, are narrow in
order to “preserve the efficiency and reliability of arbitration as an expedited, efficient, and
informal means of private dispute resolution.” Id.
MCR 3.602(J)(2) sets forth the conditions under which a court must vacate an arbitration
award. That rule states:
(2) On motion of a party, the court shall vacate an award if:
(a) the award was procured by corruption, fraud, or other undue means;
(b) there was evident partiality by an arbitrator appointed as a neutral,
corruption of an arbitrator, or misconduct prejudicing a party’s rights;
(c) the arbitrator exceeded his or her powers; or
(d) the arbitrator refused to postpone the hearing on a showing of
sufficient cause, refused to hear evidence material to the controversy, or otherwise
conducted the hearing to prejudice substantially a party’s rights.
C. SERLIN’S AWARD
Defendant first argues that arbitrator Serlin failed to disclose two conflicts of interest and
that his failure to do so is misconduct that evidences corruption and evident partiality in
contravention of MCR 3.602(J)(2)(a) and (b). We disagree.
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The rule in Michigan is that “a failure to disclose certain facts which might reasonably
lead to an impression or appearance of bias constitutes grounds for vacating an arbitration
award.” Albion Pub Sch v Albion Ed Ass’n/MEA/NEA, 130 Mich. App. 698, 701; 344 NW2d 55
(1983) (emphasis added). Disclosure of information that falls outside this category is not
required. Id. at 703.
The first alleged conflict of interest is that, shortly before the arbitration hearing, Serlin’s
firm hired Joseph Pia, who had practiced taxation law for the firm that represented plaintiff in the
underlying lawsuit. Defendant alleges that Serlin was aware that Pia sat in on a deposition in the
underlying court case and that Pia was present during at least one mediation session that Serlin
conducted in that case. The second alleged conflict is that Serlin himself was represented by J.
Leonard Hyman multiple times in the 1980s, and Hyman is a former, long-time partner of
Norman Lippitt, plaintiff’s primary counsel in this matter.
Defendant supplied affidavits stating neither he nor his former attorney would have
agreed to Serlin’s appointment had they known these facts. The affidavits are irrelevant,
however, because the standard is not subjective. See Albion Pub Sch, 130 Mich. App. at 701.
Additionally, the legal authority defendant cites does not support his position. Defendant argues
that Serlin had a duty to disclose these alleged conflicts under Michigan’s Uniform Arbitration
Act, specifically MCL 691.1692(1) and (2). The UAA is inapplicable here. As discussed
previously, this arbitration is governed by the MAA. Therefore, defendant’s argument is without
merit.
Defendant also argues that this case is governed by our holdings in Albion Pub Sch and in
Cipriano v Cipriano, 289 Mich. App. 361; 808 NW2d 230 (2010). Neither case, however, is on
point with the facts as they exist in this case. In Albion Pub Sch, this Court upheld the trial
court’s determination that the circumstances in that case “might reasonably give someone who is
considering his services as an arbitrator the impression that he might favor one litigant over the
other.” Albion Pub Sch, 130 Mich. App. at 702-703. In Albion Pub Sch, however, the arbitrator
was previously the chairman for a review committee of one of the defendants, the MEA, during
the year before the arbitration hearing. Id. at 699-700. The arbitrator was selected by the MEA
and paid for his services. Id. at 700. This case is distinguishable because Serlin did not engage
in any activities on behalf of any of the parties in the case outside of the arbitration, and there is
no indication that either party ever paid Serlin for any work outside of the arbitration
proceedings in this case. See id.
In Cipriano, one party engaged in ex parte communication with the arbitrator after the
arbitrator supplied excerpts of his draft opinion to both parties, and the arbitrator subsequently
changed the terms of the final decision. Cipriano, 289 Mich. App. at 368-369. This Court
concluded that the failure to disclose facts that “might reasonably lead to an appearance of bias”
would be grounds for vacating the award, but the arbitrator acted properly in disclosing the ex
parte contact, and the arbitrator was rethinking his decision at the time of the ex parte contact.
Id. at 372. This Court further reasoned that the change “did not result in a substantial difference
in the arbitration award by reason of a substantial error of law.” Id. at 373. There is no
comparison between an ex parte communication followed by a change in result and the facts here
concerning Serlin’s association with various attorneys over the past four decades.
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We conclude that a reasonable person would not form the impression that Serlin might
favor plaintiff because the deceased former partner of plaintiff’s current counsel represented
Serlin, especially in Serlin’s capacity as receiver, in lawsuits 30 years ago. Nor would a
reasonable person believe that Serlin might favor plaintiff because Serlin’s firm hired—one
month before the hearing was finally scheduled in this arbitration after several years of motion
practice before the arbitrator—a tax and estate planning attorney who was a former partner at the
firm of plaintiff’s counsel. This is true even if Pia had sat in on a deposition and mediation
session in the underlying lawsuit, which plaintiff denies. Serlin stated that he did not discuss the
case with Pia, and, indeed, it is hard to imagine what Pia could have shared with Serlin at that
late date that could possibly have influenced Serlin in any case. By the time Pia was hired into
another department of Serlin’s firm, Serlin had years in which to develop his own opinion of the
parties and the strength of their positions. The facts in this case are so different from Albion Pub
Sch that the earlier case provides no precedential value beyond its clear statement of the
objective standard to be applied to claims of arbitrator bias. Defendant’s argument that Serlin
had a duty to disclose his associations with other attorneys connected with plaintiff’s attorney
fails. Serlin had no duty to disclose these associations because, under the facts of this case, a
reasonable person would not reasonably form an impression of bias based on these associations.
Defendant next argues that Serlin acted with evident bias, contravening MCR
3.602(J)(2)(b), in several ways. “Partiality or bias which will allow a court to overturn an
arbitration award must be certain and direct, not remote, uncertain or speculative.” Belen v
Allstate Ins Co, 173 Mich. App. 641, 645; 434 NW2d 203 (1988). The relevant court rule itself
indicates that the partiality must exist in such a degree that it is readily observable or “evident.”
MCR 3.602(J)(2)(b).
Defendant alleges the following are instances of evident bias: (1) Serlin failed to enforce
the Agreement’s procedural requirements, which allowed plaintiff to litigate issues at the hearing
that she had waived under the Agreement; (2) Serlin did not rule for defendant on the issue of
whether plaintiff disparaged him when she told a reporter that he needed help, but instead held
that the issue could be fully litigated at the arbitration hearing; (3) Serlin acted quickly when
defendant filed his defamation lawsuit, ordering him to dismiss it and imposing a sanction; (4)
Serlin threatened defendant with default for nonpayment of his arbitrator fees and falsely stated
that plaintiff had cured her default; and (5) Serlin refused to return quit-claim deeds submitted to
him to hold in escrow to secure the periodic payments defendant owed plaintiff.
All of defendant’s examples of Serlin’s alleged evident bias are pure speculation. First,
there is no proof that Serlin disregarded the Agreement’s procedural requirements, and even if he
did, there is no particular reason to believe that bias was involved as opposed to some legitimate
reason. Second, defendant’s disagreement with Serlin’s determination that the disparagement
allegations should be litigated at the hearing instead of by motion provides no evidence of bias.
The same is true of defendant’s third allegation—that Serlin delayed the case except when
plaintiff requested action, especially considering the appropriateness of quick action when one
party files a lawsuit during the course of arbitration about a matter already under arbitration, as
defendant did. Fourth, there is no reason to assume that Serlin’s statement that plaintiff had paid
her bill was motivated by bias; if indeed she had not done so, it could just as easily have been
error as bias on Serlin’s part. Finally, Serlin explained why he did not return to defendant the
deeds defendant alleges were to serve solely as security for defendant’s payment of the
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settlement proceeds—the arbitration would not be over until the decision was confirmed by a
court, and plaintiff had secured a lien on the property to secure payment of the final arbitration
award. Serlin’s explanation is no less plausible than defendant’s allegation that bias motivated
this decision. There is no certain or direct evidence of partiality in this case, and Serlin exhibited
no evident bias. Defendant’s allegations are remote, uncertain, and speculative. See Belen, 173
Mich. App. at 645. Accordingly, defendant’s arguments regarding bias fail.
Defendant next argues that Serlin exceeded his authority by disregarding the
Agreement’s procedural rules regarding notice and a contractual limitations period, in
contravention of MCR 3.602(J)(2)(c). We disagree.
“Arbitrators exceed their power when they ‘act beyond the material terms of the contract
from which they primarily draw their authority, or in contravention of controlling principles of
law.’ ” Saveski v Tiseo Architects, Inc, 261 Mich. App. 553, 554; 682 NW2d 542 (2004), quoting
Gavin, 416 Mich. at 434. “[A]n award will be presumed to be within the scope of the arbitrators’
authority absent express language to the contrary.” Gordon Sel-Way, 438 Mich. at 497
(emphasis added). Our Supreme Court has explained, “[A]n allegation that the arbitrators have
exceeded their powers must be carefully evaluated in order to assure that this claim is not used as
a ruse to induce the court to review the merits of the arbitrators’ decision.” Id.
In this case, the Agreement required a party asserting a breach to issue written notice and
provide the breaching party 10 days in which to cure the breach. The party asserting the breach
then had 10 days to notify the arbitrator of the breach or the right to seek relief for that breach
would be waived. Defendant argues that plaintiff sometimes neglected to give him an
opportunity to cure an alleged breach, and at times filed complaints with the arbitrator more than
10 days after the expiration of the cure period. Defendant further contends that Serlin stated
during a teleconference that he was going to hear all claims. Defendant fails to cite specific
instances of plaintiff’s alleged failure to comply with the notice provision and provides no proof
of any of these allegations. He simply argues, without citation to any legal authority, that
because he made the allegations and plaintiff presented no evidence to the contrary at the
arbitration hearing, Serlin exceeded his authority by hearing her claims.
Even assuming that the notice and cure provisions constituted material terms, and the
arbitrator would have exceeded his authority if he disregarded proof that plaintiff failed to follow
it, we cannot vacate Serlin’s award on this basis because the alleged error is not evident from the
face of the award, and defendant did not establish that it was material or substantial enough to
have governed the award. To the contrary, defendant provided no proof whatsoever that plaintiff
notified the arbitrator of any claim beyond the agreed-upon period. Because it is impossible to
determine whether the factual allegations are true, defendant has failed to establish that Serlin
exceeded his authority or that Serlin’s alleged failure to enforce the contractual limitations period
governed the award. Therefore, “ ‘the award should be upheld since the alleged error of law
cannot be shown with the requisite certainty to have been the essential basis for the challenged
award.’ ” Saveski, 261 Mich. App. at 555-556, quoting Gavin, 416 Mich. at 429.
Defendant next argues that the trial court should have vacated Serlin’s award because it
contained an error of law in that plaintiff was not the prevailing party and therefore should not
have been awarded costs and fees. Again, we disagree.
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As discussed previously, any court’s ability to review arbitration awards is very narrowly
circumscribed. Courts may not review arbitrators’ factual findings, review their decisions on the
merits, engage in the interpretation of contracts, or substitute their judgment for the arbitrator’s
judgment. City of Ann Arbor v American Federation of State, Co, & Muni Employees
(AFSCME) Local 369, 284 Mich. App. 126, 144; 771 NW2d 843 (2009). Reviewing courts may
do no more than determine “whether the award was beyond the contractual authority of the
arbitrator.” Id. “Thus, as long as the arbitrator is even arguably construing or applying the
contract and acting within the scope of his authority, a court may not overturn the decision even
if convinced that the arbitrator committed a serious error.” Id. (citations and quotation marks
omitted).
Correctly stated, therefore, the issue is whether Serlin had the contractual authority to
decide that plaintiff was the prevailing party. We conclude that he did. The Agreement required
Serlin to award costs and fees to the prevailing party, which necessarily means that he was
obligated to determine which party, if any, had prevailed. Serlin’s authority to do so was not
expressly circumscribed in the contract, either directly or by a definition of the term “prevailing
party,” which was not defined in the Agreement. See Fette, 310 Mich. App. at 541. It is the role
of the arbitrator to interpret the parties’ contract. See Ann Arbor, 284 Mich. App. at 144.
Therefore, Serlin did not exceed the authority that the Agreement assigned to him in determining
that plaintiff was the prevailing party. No error is “evident from the face of the award,” see
Gordon Sel-Way, 438 Mich. at 497, especially in light of the fact that plaintiff was the only party
who was found to have suffered a breach of the Settlement Agreement and that the successor
arbitrator independently arrived at the same conclusion. Therefore, we have no authority to
review this issue further and may not vacate the award on this basis.
D. CRANMER’S AWARD
Defendant first argues that successor arbitrator Cranmer was without power to decide the
attorney fee issue because the court limited his power to deciding only that issue. We disagree.
Contrary to defendant’s argument, the court did not attempt to constrain Cranmer’s
authority. In its December 10, 2014 order, the court merely restated that which Serlin had
already said in his award—all issues were resolved by that award except the amount of costs and
fees to be awarded to plaintiff. In denying defendant’s subsequent motion to compel arbitration
of certain issues, the court noted that its December 10, 2014 order “does not account for any new
complaints by either party and does not take a position as to whether the successor arbitrator
shall address any new complaints.” In light of these facts, defendant’s argument that the trial
court limited Cranmer’s authority is without merit.
Additionally, Cranmer actually exercised his authority and did not exceed it. As Serlin
could have reconsidered whether plaintiff was the prevailing party, Cranmer clearly considered
whether Serlin had erred in reaching that conclusion. Cranmer independently determined that
plaintiff was the prevailing party and provided the parties with his rationale for that decision:
[T]his Arbitrator disagrees with Defendant’s argument that Plaintiff was not the
prevailing party in the arbitration. Arbitrator Serlin expressly found that Plaintiff
was the “prevailing party” when he rendered his award. This Arbitrator is not
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going to revisit that decision (absent further direction from the court), and indeed
believes that it is the correct result as Defendant did not prevail on any of his
claims of breach against Plaintiff as found by Arbitrator Serlin, while Plaintiff
prevailed on her claim that Defendant had harassed her in violation of the
settlement agreement. Therefore, Plaintiff improved her position through the
arbitration proceedings. [Emphasis added.]
Thus, Cranmer exercised his authority in concluding that plaintiff was the prevailing party. See
Ann Arbor, 284 Mich. App. at 144-145.
Defendant next argues that he was prejudiced by Cranmer’s refusal to allow him to obtain
the discovery to which Serlin had determined he was entitled. Again, we disagree. Cranmer
clearly had the authority under the Agreement to rule on any outstanding issues, including the
discovery issue. Cranmer did not make a record about this issue, but the Agreement did not
require this decision to be in writing. While Serlin appears to have reduced all his decisions to
writing, the Agreement contained no provision that required the successor arbitrator to follow the
same process as did the original arbitrator. Because Cranmer clearly had the authority to deny
discovery to defendant in connection with the decision on fees and costs, this argument also fails.
Defendant next argues that Cranmer violated MCR 3.602(J)(2)(d) by denying his request
to adjourn the arbitration hearing, and that he did so because the court constrained his authority
to adjourn the hearing. Again, we disagree.
In the trial court’s March 16, 2015 order, the court instructed the parties “to proceed with
the March 17, 2015 evidentiary hearing with Arbitrator Cranmer.” That order was issued the day
before that scheduled hearing, when the court unexpectedly decided defendant’s motion to
compel additional arbitration and modify the court’s December 10, 2014 order without oral
argument. Because they had been waiting for the court’s decision on that motion, Cranmer and
the parties had agreed to adjourn that hearing, but Cranmer rescheduled it for March 17, 2015,
after he received the court’s March 16, 2015 order.
Nothing on the face of Cranmer’s award indicates that he took this action solely, or even
in part, because of the court’s order. Cranmer said only that “[t]he Request for Continuance was
denied.” It is just as likely that Cranmer was not convinced that defense counsel’s failure to
prepare was sufficient cause under MCR 3.602(J)(2)(d). This arbitration had been delayed
repeatedly over four years, and, as Cranmer noted, the parties had the opportunity to submit
posthearing briefs. Indeed, defendant makes no argument on appeal in support of his contention
that failure to prepare was sufficient cause for adjournment. Accordingly, Cranmer’s refusal to
grant a continuance is not a basis for reversal.
III. CONCLUSION
We conclude that the trial court did not err in denying defendant’s motion to vacate
Serlin’s award, in confirming Serlin’s award, or in entering his arbitration award as a judgment.
We also hold that the trial court did not err in denying defendant’s motion to vacate Cranmer’s
award, in confirming Cranmer’s award, or in entering his arbitration award as a judgment.
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Affirmed. As the prevailing party, plaintiff may tax costs. See MCR 7.219(A).
/s/ Henry William Saad
/s/ Kathleen Jansen
/s/ Michael J. Kelly
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