Futureselect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc. , 190 Wash. 2d 281 ( 2018 )

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This opinion was filed for record
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^aA\kA.179 Wash. 2d 47, 308 P.3d 635 (2013), the 2016
appeal followed entry ofa finaljudgment against another defendant, or discretionary
review was appropriate. Because none of these rationales provides a basis for
FutureSelect's untimely appeal, we uphold the Court of Appeals' order of dismissal.
FACTS AND PROCEDURAL HISTORY
Lead plaintiff FutureSelect is headquartered in Washington, and it manages a
number of investment funds. The second named defendant, Tremont Partners Inc.,
is headquartered in New York and serves as the general partner to the Rye Funds,
whose status as feeder funds to Bernard L. Madoff Investment Securities LLC
(BMIS) is at the heart of this dispute. Tremont allegedly offered FutureSelect a
valuable opportunity to invest with BMIS, and made assurances regarding its
oversight and understanding ofBMIS's operation. Relying on these assurances and
the audit opinions ofthe accounting firm hired by Tremont, FutureSelect decided to
invest in the Rye Funds in 1998. Between 1998 and late 2008, when BMIS's Ponzi
scheme finally came to light, FutureSelect continued investing additional funds in
the Rye Funds allegedly based on the representations it regularly received from
Tremont and its auditors. In all, FutureSelect invested $195 million with Tremont.
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But, BMIS never invested any of this capital channeled through Rye Funds. As a
result, FutureSelect lost its entire investment. FutureSelect Portfolio Mgmt., Inc. v.
Tremont Grp. Holdings,Inc. 180 Wn.2d954,960-61,331 P.3d 29(2014). Believing
that it was misled by Tremont, FutureSelect sued Tremont and its parent companies
Massachusetts Mutual Life Insurance Company and Oppenheimer Acquisition
Corporation in August 2010; as well as Tremont's auditors—^Emst & Young (EY),
KPMG,and Goldstein Golub Kessler LLP. Clerk's Papers(CP)at 1-51 (Compl).
On June 3, 2011,the trial court granted KPMG's motion to compel arbitration
and stayed the case against KPMG pending resolution of these arbitration
proceedings. CP at 400-01 (Order Granting KPMG LLP's Mot. to Compel
Arbitration). FutureSelect filed a notice of appeal, to which KPMG responded with
a motion to dismiss, arguing that the order compelling arbitration was not
immediately appealable and that discretionary review was not warranted under RAP
2.3(b). KPMG LLP's Mot. to Dismiss Appeal, No. 67302-5-1, at 5-9 (Wash. Ct.
App. May 11,2011). On November 11, 2011, a three-judge panel granted KPMG's
motion to dismiss and denied discretionary review, thus terminating review.
FutureSelect did not seek further review of the order in this court, and a certificate
of finality was issued on December 30, 2011. Notation Ruling, No. 7461 l-l-I, at 2
(Wash. Ct. App. May 20, 2016).
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FutureSelect then indicated to the superior court that it intended to proceed
with arbitration of claims against KPMG without delay. It did so in the context of
seeking a certificate offinality oforders dismissing other defendants. See CP at 762,
764 (Pis.' Mot. for Entry of Final J. at 5, 7)("The arbitration between Plaintiffs and
KPMG will be a complex proceeding that will take several years to resolve....[A]n
appeal of the judgments in favor of the Dismissed Defendants would not delay this
action, which has been stayed, and will not delay the arbitration proceedings against
Plaintiffs and KPMG.").' To date, FutureSelect and KPMG have not initiated
arbitration proceedings.
After settling with several defendants, FutureSelect obtained a judgment
against another defendant, auditor EY. CP at 701-03 (J. for Pis.). A different trial
judge had earlier denied EY's motion to compel arbitration, based on waiver and a
'See also CP at 769-70 (Proposed Order Granting Mot. for Entry of Final J.
(adopted by the superior eourt Dee. 13, 2011)):
There is no just reason to delay the appeal of these judgments for potentially
years until eompletion of unscheduled arbitration proceedings to which
Tremont,[Oppenheimer, Massachusetts Mutual, and EY]are not parties. . . .
[T]he questions to be reviewed on appeal are no longer before this Court as
the remaining claims against KPMG shall proceed to arbitration. . . . [A]ny
review of the KPMG claims by this Court will be limited to confirming,
vacating, modifying or correcting an arbitration award. See RCW
7.04A.220. . . . Plaintiffs' immediate appeal will not delay the adjudication
of the remaining claims against KPMG, which may proceed to arbitration
while Plaintiffs pursue their appeal.
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finding that the plaintiffs were not bound by the engagement agreement with the
auditor, as they were not signatories and their claims were direct rather than
derivative.^
In January 2016,FutureSelect filed a notice ofappeal ofthe same June 3,2011
order compelling arbitration with KPMG that it had unsuccessfully appealed in
2011. KPMG moved to dismiss, arguing that the June 2011 order was not properly
before the Court of Appeals. The Court of Appeals commissioner dismissed the
appeal as untimely. See Notation Ruling at 3. A panel of the Court of Appeals
denied FutureSelect's motion to modify. Order Den. Mot.to Modify, No.7461 l-l-I
(Wash. Ct. App. Oct. 5, 2016). FutureSelect then sought review in this court.^
ANALYSIS
Although FutureSelect asserts a global right to immediately appeal from an
order compelling arbitration, this case is less about arbitration rules than appellate
^ See CP at 692-93 (Order Den. Mot. to Compel Arbitration)("The court coneludes
that the Plaintiffs are not bound by the arbitration clause in EY's audit engagement
agreements because the Plaintiff did not sign EY's agreements and their claims are direct
claims against EY, not derivative claims. . . . The court also concludes that even if the
Plaintiffs' claims were to be categorized as derivative claims, EY has waived its right to
demand arbitration. EY's motion to compel arbitration and stay this ease therefore is
denied.").
^ Although FutureSelect petitioned this court for review of a decision terminating
review under RAP 13.4, our deputy clerk properly redesignated the petition as a motion for
discretionary review of an interlocutory decision pursuant to RAP 13.3(d). Ruling Den.
Review, No. 93824-5, at 2 n.l (Wash. Mar. 24, 2017).
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rules. FutureSelect primarily argues that at this juncture our review is appropriate
because the prior rulings in 2011 conflict with our intervening decision in Hill, 179
Wash. 2d 47. FutureSelect also argues that review is timely following entry of a final
judgment against EY,and that discretionary review should have been granted in any
event. All of these arguments fail. The Court of Appeals properly dismissed
FutureSelect's appeal as untimely.
I. Hill Does Not Provide a Basis for Review of the 2011 Order
Compelling Arbitration
In Hill, we granted discretionary review of a labor dispute and reversed the
Court of Appeals affirmation of a trial court order compelling arbitration because
we found the arbitration clause unconscionable. Id. at 50. In rejecting an argument
to not reach the unconscionability issue, we observed in Hill that
"arbitration is a matter of contract and a party cannot be required to submit
to arbitration any dispute which he has not agreed so to submit." To that end,
we have recognized our authority to decide "gateway dispute[s]." These
types of disputes go to the validity of the contract and are preserved for
judicial determination, as opposed to arbitrator determination, unless the
parties' agreement clearly and unmistakably provides otherwise.
Unconscionability is one such gateway dispute.
Id. at 53 (alteration in original) (internal quotation marks and citations omitted)
(quoting Satomi Owners Ass'n v. Satomi, LLC, 167 Wash. 2d 781, 809-10, 225 P.3d
213 (2009)).
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In Hill, we recognized that an order declining to compel arbitration is
immediately appealable in part because [i]fa trial court does not compel arbitration
and there is no immediate right to appeal,the party seeking arbitration must proceed
through costly and lengthy litigation before having the opportunity to appeal, by
which time such an appeal is too late to be effective.'"Id. at 54(alteration in original)
(quoting Stein v. Geonerco, Inc., 105 Wash. App. 41, 44, 17 P.3d 1266 (2001)). We
reasoned that "[wjhile we have never addressed whether the opposite is always true,
similar considerations are at play. If a court compels arbitration without deciding
the validity of the arbitration clause, a party may be forced to proceed through a
potentially costly arbitration before having the opportunity to appeal. This is
particularly a concern where an arbitration clause imposes all or some of the costs
of arbitration on the disfavored party." Id. We added that we found "no support in
the rules of procedure or case law for the Court of Appeals' decision to compel
arbitration without considering whether the arbitration clause is even valid." Id. at
55.
FutureSelect relies on Hill to argue that the "gateway dispute" in this case
concerns whether it, as a nonsignatory to the KPMG engagement agreement, can be
compelled to arbitrate while forgoing its right to a jury trial. Mot.for Discr. Review
at 12, 17. FutureSelect insists that Hill proclaimed new precedent that overturned
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settled law prohibiting the immediate appeal of an order compelling arbitration.
Pet'rs' Mot. to Modify Ruling of Comm'r at 6-11.
KPMG responds that Hill cannot reasonably be read to overrule seven decades
of established law regarding the right to appeal an order compelling arbitration, as
the opinion contains no discussion ofthe relevant cases, statues, and appellate rules.
KPMG LLP's Answer in Opp'n to Mot. to Modify Comm'r's Ruling at 6-7, 9.
KPMG further argues that even ifHill changed the law,that change does not provide
any basis for granting review of a five-year-old order compelling arbitration. Id. at
7.
We agree with KPMG and uphold the order dismissing FutureSelect's appeal.
Our decision in Hill did not announce a holding that orders compelling arbitration
are immediately appealable, and FutureSelect's 2016 appeal remains untimely.
FutureSelect reads too much into our decision in Hill, which came up on
discretionary review, and the sole holding regards unconscionability ofthe particular
arbitration agreement. Hill, 179 Wash. 2d at 52-54. Hill did not decide appealability
oforders compelling arbitration as a matter ofright. While language in Hill suggests
there are similar concerns for parties in being able to appeal both orders declining
and compelling arbitration, this language is dicta.
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In Hill, we did not address RAP 2.2 regarding trial court decisions that may
be appealed. Nor did we reference Washington's uniform arbitration act, chapter
7.04A RCW, including RCW 7.04A.070(6)(providing that a court shall stay any
judicial proceeding that involves a claim subject to the arbitration until the court
renders a final decision), RCW 7.04A.280 (providing that an appeal may be taken
from an order denying a motion to compel arbitration, without also mentioning an
order compelling arbitration),RCW 7.04A.230(setting forth circumstances in which
the court shall vacate or confirm an arbitration award), and RCW 7.04A.250
(regarding entry ofjudgment). We also did not discuss several cases holding that
orders compelling arbitration are not immediately appealable. See Saleemi v.
Doctor's Assocs., 176 Wash. 2d 368, 376, 292 P.3d 108 (2013)("At the time of the
order compelling arbitration, [petitioner] had only a right to move for discretionary
review under RAP 2.3, not for review as of right under RAP 2.2."); All-Rite
Contracting Co. v. Omey, 27 Wash. 2d 898, 901, 181 P.2d 636 (1947)("an appeal
cannot be taken from an order to proceed with arbitration"). If we were going to
overturn decades of settled law, we would not do so sub silentio without citation to
previously controlling authorities.
Even if Hill could be read to change the law on appealability, that does not
support appellate "reconsideration" of the 2011 Court of Appeals order dismissing
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review. FutureSelect relies on RAP 2.5(c), but that rule does not allow us to apply
a recent decision to overturn a final Court of Appeals decision. RAP 2.5(c)(2)
simply restricts the law of the case doctrine when a case is on appeal a second time
following remand."^ There is no second appeal at issue in this case, which remains
stayed in the trial court pending arbitration.
FutureSelect seems to acknowledge that RAP 2.5(c)(1) is not applicable
unless '"a trial court decision is otherwise properly before the appellate court.'"
Pet'rs' Mot. to Modify Ruling of Comm'r at 13 (quoting RAP 2.5(c)(1)). However,
it argues that intervening law justifies revisiting the 2011 Court of Appeals decision
under RAP 2.5(c)(2) since "'[a]n appellate court's discretion to disregard the law of
the case doctrine is at its apex when there has been a subsequent change in
controlling precedent on appeal.'" Suppl. Br. of Pet'rs at 11-12 (quoting Roberson
V. Perez, 156 Wash. 2d 33, 43, 123 P.3d 844 (2005)). Unlike FutureSelect's petition,
however, Roberson was independently before the Court of Appeals on a prior
judgment followed by a jury verdict. Roberson, 156 Wash. 2d at 37-39.
"Law of the Case Doctrine Restricted. The following provisions apply if the
same case is again before the appellate court following a remand: ... The appellate court
may at the instance of a party review the propriety of an earlier decision of the appellate
court in the same case and, where justice would best be served, decide the case on the basis
ofthe appellate court's opinion ofthe law at the time ofthe later review." RAP 2.5(c)(2).
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For the proposition that RAP 2.5(c)(2)creates an immediate appeal as ofright,
FutureSelect cites State v. Schwab, 134 Wash. App. 635, 141 P.3d 658 (2006). That
case is distinguishable. In terms of appellate jurisdiction, Schwab was before the
Court of Appeals a second time, on Schwab's appeal of his manslaughter judgment
and sentence and the State's motion to recall an earlier mandate. Id. at 641. In
contrast, FutureSelect's 2016 petition attempts to reopen the 2011 decision by the
Court of Appeals in the first instance; the case is not otherwise on appeal a second
time. Therefore, RAP 2.5(c)(2) is not applicable. FutureSelect's argument that the
decisions of the commissioners at the Court of Appeals and Washington Supreme
Court render RAP 2.5(c)(2) meaningless by applying a timeliness bar ignores the
rule's applicability to second appeal or motion contexts. See Pet'rs' Mot. to Modify
Ruling of Comm'r at 14.
Further, KPMG points out that application of RAP 2.5(c)(2) is ultimately
discretionary. Suppl. Br. of Resp't at 20 (citing State v. Schwab, 163 Wash. 2d 664,
674, 185 P.3d 1151 (2008)). Hill, standing alone, provides no basis to now review
the 2011 trial court order without regard to the earlier, final appeal. The possibility
of new arguments does not confer appellate jurisdiction to review a years-old order
long after the 30-day window to appeal has expired. RAP 5.2(a). Moreover, Hill
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was decided nearly two years before FutureSelect asserted it as a basis for allowing
an "immediate" appeal ofthe 2011 order.
11. The 2016 Judgment against EY Is Not a Final Judgment That
Allows for Appeal of the 2011 Order Compelling Arbitration
against KPMG; No Appeal as a Matter of Right Applies
FutureSelect alternatively argues that review of the 2011 trial court order is
now appealable following entry ofthe 2016 final judgment against EY. The current
appeal was filed within 30 days of that EY judgment. Nonetheless, that judgment
does not bring up for review the order compelling arbitration with KPMG.
FutureSelect relies in part on RAP 2.2(d), providing that "[i]n any case with
multiple parties or multiple claims for relief. . . , an appeal may be taken from a
final judgment that does not dispose of all the claims or counts as to all the parties,
but only after an express direction by the trial court for entry ofjudgment and an
express determination in the judgment, supported by written findings, that there is
no just reason for delay." Pet'rs' Reply in Supp. of Its Mot. to Modify Ruling of
Comm'r at 9. Initially, the trial court never entered the required order to allow appeal
ofthe KPMG matter. FutureSelect neglects to remind us that it previously requested
that the trial court bifurcate the arbitration proceedings it intended to pursue against
KPMG from the claims against the other, dismissed defendants it requested final
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judgment on. See CP at 763 (Pis.' Mot. for Entry of Final J. at 6). FutureSelect
argued before the superior court:
First, the claims against the Dismissed Defendants that Plaintiffs seek to
appeal are separate from the claims against KPMG, the only defendant
remaining before the trial court. Two counts of the Complaint are against
KPMG;the remaining thirteen counts are against the Dismissed Defendants.
Second, the issues to be raised in Plaintiffs' appeal will not be considered by
this Court. Pursuant to this Court's order, the only claims remaining in this
Court have been stayed and must proceed to arbitration.
Id. Curiously, FutureSelect asks this court to now accept that the 2016 judgment
against another auditor unseparates the claims that FutureSelect successfully asked
the trial court to separate in 2011. We reject this attempt at revisionist history.^
^ FutureSelect argued previously that the trial court granted a stay of litigation
against KPMG pending the outcome ofthe BY trial. See Pet'rs' Mot. to Modify Ruling of
Comm'r at 4("On November 11,2011, a three-judge panel ofthe Court ofAppeals granted
KPMG's motion to dismiss and denied discretionary review. A certificate of finality was
issued on December 30, 2011, and all litigation against KPMG was stayed pending
resolution of FutureSelect's claims against other parties." (emphasis added)); Pet'rs'
Reply in Supp. ofIts Mot. to Modify Ruling of Comm'r at 8-9(arguing that "following the
Hill decision, the denial of a similar motion to compel by BY, the imposition of a stay
pending the outcome ofthe EY trial, and the conclusion of that BY trial—and upon entry
of final judgment—FutureSelect timely filed the present appeal"). At oral argument,
FutureSelect conceded that the stay was actually granted pending resolution of the
arbitration against KPMG. Wash. Supreme Court oral argument, FutureSelect Portfolio
Mgmt., Inc. V. Fremont Grp. Holdings, Inc., No. 93824-5 (Jan. 18, 2018), at 9 min., 0 sec.
through 9 min., 20 sec., recording by TVW, Washington State's Public Affairs Network,
available at https://www.tvw.org. This concession is appropriate in light of the record.
See CP at 400-01 (Order Granting KPMG LLP's Mot. to Compel Arbitration)("Plaintiffs'
claims against KPMG are subject to mandatory arbitration and this action shall be stayed
pending resolution of that arbitration.").
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Moreover, to the extent FutureSelect is arguing that the judgment against EY
is a final judgment from which a timely appeal should be measured under RAP
2.2(a)(1), it is wrong. See Mot. for Discr. Review at 14. Plainly, that judgment did
not resolve all claims against all parties, as FutureSelect's claims against KPMG
remain and other orders had already resolved claims against other parties. See
Pet'rs' Mot. to Modify Ruling of Comm'r at 5 (contending that after entry of final
judgment against EY followingjury verdict,"[a]ll claims against all defendants were
resolved, except for the claims against KPMG"). The long-standing rule with
respect to appeal of arbitration awards is that the relevant final judgment is the
judgment confirming the arbitration award. Teufel Constr. Co. v. Am. Arbitration
Ass'n, 3 Wash. App. 24, 25-26, 472 P.2d 572(1970){citing All-Rite Contracting Co.,
27 Wash. 2d at 901). While FutureSelect will have a right to appeal from a final
judgment, no such judgment has been entered in this case.
Even if FutureSelect were correct about Hill proclaiming a new opportunity
to appeal an order compelling arbitration as a matter ofright,the basis for that appeal
would be under RAP 2.2(a)(3), just as with an order denying a motion to compel
arbitration. See Hill, 179 Wash. 2d at 54 (citing Stein, 105 Wash. App. at 44-45)(a
decision denying a motion to compel arbitration is immediately appealable under
RAP 2.2(a)(3) because the order denying arbitration discontinues the "action for
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arbitration," thereby affecting a "substantial right" in the arbitration action). As our
commissioner correctly recognized, "Assuming RAP 2.2(a)(3) applied to the June
3, 2011 order, FutureSelect would have had 30 days after the entry of the decision
to file a notice of appeal. See RAP 5.2(a). While failure to appeal would not
necessarily foreclose later review, that later review would be appropriate upon entry
of final judgment under RAP 2.2(a)(1)." Ruling Den. Review at 7 n.3.^
Because we did not explicitly overrule established case law in Hill, that case
provides no avenue for review by FutureSelect. See Saleemi, 176 Wn.2d at 376("At
the time ofthe order compelling arbitration,[petitioner] had only a right to move for
discretionary review under RAP 2.3, not for review as of right under RAP 2.2.").
Nor is there any basis to treat the 2011 arbitration order as being immediately
appealable after the 2016 EY judgment. The only other basis FutureSelect asserts
for review at this juncture is pure discretionary review, which the Court of Appeals
properly denied.
^ Additionally, it is not enough for FutureSelect to argue that it is entitled to review
as a matter of right under RAP 6.1. See Pefrs' Reply in Supp. of Mot. to Modify at 3-4
("RAP 6.1 states that '[tJhe appellate court "accepts review" of a trial court decision upon
the timely filing in the trial court of a notice of appeal from a decision which is reviewable
as a matter of right'"). That review still must be sought within 30 days. RAP 5.2(a).
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III. There is No Basis for Granting Discretionary Review of the Order
Compelling Arbitration
FutureSelect alternatively requests discretionary review ofthe trial court order
compelling arbitration under RAP 2.3(b)(2) on the ground that the superior court
committed probable error and its decision substantially alters the status quo or
substantially limits the freedom of a party to act. Pet'rs' Mot. to Modify Ruling of
Comm'r at 15. Here,FutureSelect argues that compelling arbitration denies its right
to a court trial byjury. Id. In addition, FutureSelect argues that discretionary review
is warranted under RAP 2.3(b)(1) because the superior court committed an obvious
error that would render further proceedings useless. Id. at 16 n.3. KPMG points out
that FutureSelect did not in fact seek to appeal the superior court decision under RAP
2.3. "FutureSelect neither filed a notice for discretionary review under RAP 2.3 nor
meaningfully argued in the Court of Appeals for review under RAP 2.3." KPMG
LLP's Answer in Opp'n to Mot. to Modify at 14. The Court of Appeals had denied
discretionary review of FutureSelect's appeal under RAP 2.3(b) back in 2011.
Notation Ruling at 2. In 2016, the Court of Appeals commissioner dismissed
FutureSelect's 2016 appeal as untimely. Id. at 2-4. In the absence of any argument
by FutureSelect supporting discretionary review by the Court of Appeals in 2016,
we decline to entertain this basis for belatedly accepting review.
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Lastly, FutureSelect suggests the availability of discretionary review under
RAP 1.2(c), which permits appellate courts to waive or alter the rules of appellate
procedure "in order to serve the ends of justice." FutureSelect quotes selectively
from RAP 1.2(a) and 1.2(c), but neglects to cross-reference the restrictions in RAP
18.8(b):
The appellate court will only in extraordinary circumstances and to prevent
a gross miscarriage ofjustice extend the time within which a party must file
a notiee of appeal, a notice for diseretionary review, a motion for
discretionary review of a deeision of the Court of Appeals, a petition for
review, or a motion for reconsideration. The appellate eourt will ordinarily
hold that the desirability of finality of decisions outweighs the privilege of a
litigant to obtain an extension oftime under this seetion.
RAP 18.8(b). FutureSelect fails to identify any extraordinary circumstances or a
gross miscarriage ofjustice that prompted it to swerve away from the arbitration it
represented to the trial court it was pursuing without delay in 2011, and fails to
justify allowing a second, untimely review of the order compelling arbitration five
years after the fact. Here, the ends ofjustice favor the finality ofthe 2011 Court of
Appeals decision, from which FutureSelect did not timely seek our review.
CONCLUSION
FutureSelect's request for review is untimely. Hill provides no basis for
belated review and at any rate was decided nearly two years before FutureSelect
asserted it as a basis for the 2016 appeal of the 2011 order. Nor is there a basis for
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treating the 2011 arbitration order as being immediately appealable after the 2016
EYjudgment. Because the Court ofAppeals properly recognized that FutureSelect's
2016 appeal of the 2011 order compelling arbitration was untimely, we affirm.^
^ Regarding KPMG's additional motion to disqualify FutureSelect's counsel,
Thomas, Alexander & Forrester, we need not decide this motion on the untimely
appeal. KPMG requests "the next tribunal that takes jurisdiction over this case (to hear
this appeal or the parties' underlying dispute, be it a court or in arbitration)should consider
the motion to disqualify before allowing any further litigation on the merits." KPMG
LLP's Mot. to Deem Already Fully Briefed Mot. to Disqualify as Filed and Pending at 1.
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WE CONCUR:
fUrLhA.
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