Garrett Ranches Llc v. Larry Honn Family Llc

FILED
October 15, 2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
GARRETT RANCHES LLC, a )
Washington Limited Liability Company, )
) No. 30620-8-111
Respondent, ) (consolidated with Nos.
) 30668-2-111,31177-5-111)
v. )
)
LARRY HONN FAMILY LLC, a )
Washington Limited Liability Company, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, A.C.J. Larry Honn Family LLC appeals orders confrrrning
arbitration awards requiring that it sell farm ground and associated personal property to
Garrett Ranches LLC. The principal issues raised on appeal are whether the trial court
erred in compelling arbitration and later confirming awards by the arbitrators that set
incidental terms for the purchase and sale of the farm ground pursuant to exercise of an
option; the parties had not been able to work out all of the nonprice terms themselves.
Our decision resolves three appeals taken by the Honns that we consolidated. We
fmd that the first and third appeals-Court of Appeals Cause Nos. 30620-8-111 and
31177-5-IIl-asked that we review orders from which appeal cannot be taken. For
No. 30620-8-111 (consolidated with Nos. 30668-2-III; 31177-5-III)
Garrett Ranches LLC v. Larry Honn Family LLC
reasons discussed below, then, we dismiss the appeals in those two cases. With respect to
Cause No. 30668-2-III, we find no error by the trial court and affirm. We award Garrett
Ranches its reasonable attorney fees and costs incurred on appeal.
FACTS AND PROCEDURAL BACKGROUND
In September 2010, Larry Honn Family LLC, whose managers are Larry Honn Sr.
and Charlotte Honn, and Garrett Ranches LLC, whose managers are Frank and Joshua
Garrett, entered into a farm lease with an option to purchase. The lease provided that the
Garretts would lease 2,008 acres of land from the Honns, 335 acres of which was tillable,
for an initial five-year term. The lease included an option to purchase the property for
$400,000, exercisable at any time during the lease upon 30 days' written notice. In the
event of exercise, the lease provided that "the parties shall execute a Contract of Sale in
such form as is attached hereto as Exhibit'A.'" Clerk's Papers (CP) at 15. Although the
lawyer who drafted the lease attached a form contract of sale to the lease as its exhibit A,
the contract became detached during the circulation and review process.
Shortly after the lease was executed the Honns repudiated the lease and the option,
which the Garretts had expressed the intent to exercise. The lease included an arbitration
clause that provided for binding arbitration if "any dispute shall arise between the parties,
or with respect to this Lease." CP at 19. The Garretts demanded arbitration and a three-
member arbitration panel conducted a hearing in December 2010.
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No. 30620-8-111 (consolidated with Nos. 30668-2-111; 31177-5-111)
Garrett Ranches LLC v. Larry Bonn Family LLC
The arbitrators signed an arbitration award on December 28, finding that the lease
and option were enforceable. The award stated that the parties were to mutually agree
upon terms of a contract of sale of the property by January 1, 2012, failing which the
panel, which reserved jurisdiction, would issue a further award pertaining to the terms of
the proposed contract of sale. The Garretts moved to confirm the arbitration award in
superior court and in January 2011 the court confirmed this first, 2010 arbitration award.
Neither party appealed the order confirming the award.
The parties were unable to reach an agreement on the terms of the contract of sale,
so in November 2011 the Garretts again filed notice of arbitration, eventually setting the
arbitration hearing for December 22.
Before the hearing could take place, the Honns sent two "notices of termination"
of the lease to the Garretts, which became the principal basis for the Honns' legal
position thereafter and are at the heart of this appeal. The lease had provided that the
Honns could terminate it if the Garretts failed to carry out any of their covenants or
agreements. In reliance on that provision, the Honns' notices of termination notified the
Garretts
[t]hat your Cash Rent Farm Lease with Option to Purchase dated
September 14, 2010 with the above-named leased property is hereby
forfeited and terminated due to the material breach of the Cash Rent Farm
Lease with Option to Purchase. [I]
1 Thislanguage in the second notice was modified to provide an explicit
termination date.
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No. 30620-8-111 (consolidated with Nos. 30668-2-111; 31177-5-111)
Garrett Ranches LLC v. Larry Honn Family LLC
CP at 26, 31 (boldface omitted). The notices went on to identify seven alleged breaches
of the lease, including waste, failure to spray weeds, and removal of irrigation equipment.
The Garretts promptly filed an amended notice of arbitration adding the issue of whether
they had breached the lease as an issue to be arbitrated at the upcoming hearing.
The Honns took the position that their notices of termination had effectively
eliminated any contractual right or duty to arbitrate and they filed a motion to stay
arbitration. The court refused to stay the hearing, which proceeded. After the hearing,
the arbitrators-aware of the Honns' challenge to their authority-asked the lawyers to
have the challenge heard and resolved by the superior court before the panel issued its
decision. On January 13,2012 the trial court heard the Honns' motion to stay and the
Garretts' cross motion to compel, and ruled that the dispute was arbitrable. Shortly
thereafter, the panel issued its award. Among the matters decided by this second, January
2012 award was that the Garretts had never violated the lease as contended by the Honns'
notices of termination.
The Garretts again moved the trial court to confirm this second award. The court
confirmed it on February 10.
The Honns filed their first notice of appeal of the superior court's decisions on
February 3,2012, designating the court's order on the motion to compel arbitration as the
decision they wanted reviewed. On March 1, they filed a notice of appeal designating the
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No. 30620-8-111 (consolidated with Nos. 30668-2-111; 31177-5-111)
Garrett Ranches LLC v. Larry Honn Family LLC
trial court's orders affinning the first and second arbitration awards as additional
decisions they wanted reviewed.
The arbitrators' second, January 2012 award had included their decision that
attorney fees should be awarded to the Garretts and gave the parties a time line for
submitting a fee request and opposition, after which the arbitrators would award fees
based on the written submissions. In a third, supplemental award entered in June 2012,
the arbitrators announced the amount of fees and costs awarded to the Garretts. This
third award was con finned by the trial court on July 12.
A week later the Honns-who had by then already filed their opening brief in their
appeal of the orders confirming the first and second arbitration awards-attempted to file
a motion in the superior court to vacate or modifY the second and third awards. Because
the matter was then on appeal, however, they were required by RAP 7 .2(e) to obtain
leave of this court to file the motion. They proceeded to do so and then re-filed the
motion in superior court on August 30. The grounds they identified for vacating the
awards were that (1) the arbitrators exceeded their authority in creating terms to a
contract; (2) there was no finding ofa valid fann lease (essentially, their argument that
the lease was terminated by their notice); (3) there was no authority to award attorney
fees; and (4) the arbitrators refused to postpone arbitration pending lease status
detennination. Following a hearing in September 2012, the trial court denied the motion.
The Honns filed a third notice of appeal, seeking review of the September 2012 order
5
No. 30620-8-III (consolidated with Nos. 30668-2-III; 31177 -5-III)
Garrett Ranches LLC v. Larry Honn Family LLC
denying the motion to vacate. They requested consolidation of the three appeals, which
we granted.
ANALYSIS
In briefing that does not distinguish which errors or issues they believe arise in
connection with which of the consolidated appeals, the Honns assign error to (1) the trial
court's legal determination that there was a continuing duty to arbitrate despite the
Honns' notices of termination of the lease, (2) the trial court's legal determination that
the duty to arbitrate extended to issues relating to the option and terms of a real estate
sale agreement, (3) the arbitrators exceeding their authority in imposing terms of a real
estate sale agreement, and (4) the trial court's refusal to vacate the arbitration award on
account of its erroneous refusal to postpone arbitration until it could make a judicial
determination on the status of the lease. We combine consideration of the fourth
assignment of error with the first, to which it is inextricably related, and address the
assignments of error in tum.
I
The Honns first argue that their notices of termination of the parties' lease
terminated any duty or right to arbitrate. We engage in de novo review of a trial court's
decision to grant a motion to compel or deny arbitration. Zuver v. Airtouch Comm 'ens,
Inc., 153 Wn.2d 293,302, 103 P.3d 753 (2004).
6
No. 30620-8-III (consolidated with Nos. 30668-2-III; 31177-5-III)
Garrett Ranches LLC v. Larry Bonn Family LLC
The Garretts make a threshold argument that the issue is not properly before us
because an order to compel arbitration is not an order from which appeal may be taken.
RCW 7.04A.280 identifies six types of orders or judgments relating to arbitration from
which appeal may be taken; an order compelling arbitration is not one of them. It has
been definitely settled by our Supreme Court that an order compelling arbitration is not
final and therefore not appealable. Teufel Constr. Co. v. Am. Arbitration Ass 'n, 3 Wn.
App. 24,25,472 P.2d 572 (1970) (citing All-Rite Contracting Co. v. Omey, 27 Wash. 2d
898, 181 P.2d 636 (1947)). The Honns' first notice of appeal, resulting in our Cause
30620-8-III, designated the trial court's order granting the motion to compel arbitration
as the decision it wanted reviewed .
. We agree with the Garretts that the first appeal should be dismissed. But this does
not dispense with the assignment of error in connection with the Honns' second appeal,
our Cause 30668-2-III, in which they timely designated the order confirming the
February 2012 arbitration award as an order they wanted reviewed. We therefore
2
consider the issue in connection with their second appeal.
2 The Garretts further argue from RCW 7.04A.280 that because appeal may not be
taken from a motion to compel, the Honns are not entitled to argue on appeal that the
court was wrong in compelling arbitration. To provide that an order is nonfinal and
appeal cannot be taken from it is not to say that error cannot be assigned to it once a final
judgment is entered. The appellate rules expressly permit the appellate court to review
any earlier order or ruling, whether or not it was "appealable" and regardless of whether
it is designated in the notice of appeal, if it prejudicially affects the decision designated in
the notice. RAP 2.4(b)(1); see Fox v. Sunmaster Prods., Inc., 115 Wn.2d 498,504-05,
7
No. 30620-8-III (consolidated with Nos. 30668-2-III; 31177-5-III)
Garrett Ranches LLC v. Larry Honn Family LLC
The lease provision on which the Honns rely for their asserted ability to terminate
the lease and thereby terminate any right to arbitrate is section 12, which provides in
relevant part that
in the event the Lessee shall fail to carry out any of the covenants or
agreements herein contained, then, and in such event, the Lessor may, in
addition to any other remedy, declare this Lease forfeited and immediately
enter the Property and all rights and privileges herein granted shall
thereupon terminate as fully as though this Lease had expired by the
limitations herein expressed; provided, however, the Lessor shall deliver
written notice specifying such violation to the Lessee and the Lessee shall
have thirty (30) days from the date of receipt of such notice within which to
perform such agreement and thereby reinstate this Lease.
CP at 17-18.
The Honns argue that the trial court vacillated in ruling on the cross motions to
stay or compel arbitration and then wrongly refused to reduce to writing what they
contend was its "finding" that their notices of termination had terminated any arbitration
right or duty. The trial court did vacillate; it admitted in announcing its ruling that it was
not entirely sure whether the issue of termination should be resolved by the court or by
798 P .2d 808 (1990). If a trial court erroneously compels arbitration, the erroneous order
can be reviewed as one prejudicially affecting a subsequent order confirming an
arbitration award. See RAP 2.4(b)(1); see Teufel, 3 Wash. App. at 26 (although party may
not appeal a non final order compelling arbitration, the party will have the opportunity
"[a]t the proper time" to challenge whether the parties' disputes were arbitrable); cf
Saleemi v. Doctor's Assocs., Inc., 166 Wash. App. 81, 91-92, 269 P.3d 350 (2012)
(recognizing that the trial court's nonfinal orders where arbitration is compelled are
reviewable following arbitration and subject to the same standard of review as other
non final court decisions), affd, 176 Wn.2d 368,292 P.3d 108 (2013).
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No. 30620-8-111 (consolidated with Nos. 30668-2-111; 31177-5-111)
Garrett Ranches LLC v. Larry Honn Family LLC
the arbitrators. But it was reminded of the broad scope of the parties' arbitration
agreement during the course of its ruling and its final pronouncement denied the motion
to stay and granted the motion to compel, "because you do have a dispute as to whether
there's been a breach. And 1 don't feel, because of that, that it's appropriate for the Court
to automatically accept the argument that it's-the lease is terminated. And then you
have the language there, 'any dispute.' So you're stuck with arbitration." Report of
Proceedings at 10. 3
Private arbitration in Washington is governed by state statute, at least as long as
4
state law does not regulate contracts evidencing a transaction involving commerce in a
way that conflicts with the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-14.
Washington has adopted the revised Uniform Arbitration Act (UAA) promulgated in
2000, codified at chapter 7.04A RCW. As revised, the UAA addresses many issues that
arise in modem arbitration cases and takes into consideration decisions by the United
3 Critical to the lease termination provision on which the Honns relied is the
condition that must exist for the termination remedy to arise: "in the event the Lessee
shallfail to carry out any ofthe covenants or agreements herein contained, then, and in
such event." Once the Garretts challenged the Honns' assertion that the Garretts had
breached the agreement (and the Garretts did so immediately) the effectiveness of the
purported termination was at issue. Whether there was a forfeiture depended on whether
the Garretts had in fact failed to carry out their covenants and agreements-something
the arbitrators would decide.
4The language "involving commerce" as used in 9 U.S.C. § 2 has been construed
expansively as coinciding with the full reach of the commerce clause. Allied-Bruce
Terminix Cos. v. Dobson, 513 U.S. 265,274, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995)
9
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Garrett Ranches LLC v. Larry Honn Family LLC
States Supreme Court concerning the FAA and the doctrine of preemption. UNIF.
ARBITRATION ACT (2000), 7 pt. IA U.L.A. 1, prefatory note at 2-3 (2009).
RCW 7.04A.060(2) provides that "[t]he court shall decide whether an agreement
to arbitrate exists or a controversy is subject to an agreement to arbitrate." RCW
7.04A.060(3) provides that "[a]n arbitrator shall decide whether a condition precedent to
arbitrability has been fulfilled and whether a contract containing a valid agreement to
arbitrate is enforceable." This latter provision codifies section 6(c) of the UAA, whose
language is intended to follow the "separability" doctrine outlined in Prima Paint
Corporation v. Flood & Conklin Manufacturing Co., 388 U.s. 395, 87 S. Ct. 1801, 18 L.
Ed. 2d 1270 (1967). Under the separability doctrine, the court's concern is whether the
arbitration clause in particular is unenforceable (as, for instance, having been induced by
fraud), which is an issue for the court to decide; or whether the enforceability of the
underlying contract is being challenged, which is an issue for the arbitrator. UAA § 6
cmt. 4, 7 pt. IA U.L.A. 27. It is generally accepted that the expiration or termination of a
contract does not necessarily terminate arbitration provisions included in the contract.
See Nolde Bros., Inc. v. Local No. 358 Bakery & Confectionary Workers Union, 430 U.S.
243,252-53,97 S. Ct. 1067,51 L. Ed. 2d 300 (1977). But ifthere is a dispute over
whether a contract has expired or terminated and, as here, one party contends that the
(addressing the breadth of FAA preemption).
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No. 30620-8-111 (consolidated with Nos. 30668-2-111; 31177-5-111)
Garrett Ranches LLC v. Larry Honn Family LLC
arbitration right and duty has thereby ended, the dispute over termination or expiration is
one that the arbitrator decides.
Washington follows the separability doctrine. Townsend v. Quadrant Corp., 173
Wn.2d 451,457-60,268 P.3d 917 (2012) (discussing Prima Paint and the United States
Supreme Court's reaffirmation of that decision in Buckeye Check Cashing, Inc. v.
Cardenga, 546 U.S. 440, 445, 126 S. Ct. 1204, 163 L. Ed. 2d 1038 (2006)). In
Townsend, our Supreme Court distinguished the outcome in Prima Paint and Buckeye
from the outcome in its decision in McKee v. AT&T Corp., 164 Wn.2d 372,394, 191
P.3d 845 (2008), in which it held that a challenge that was "'only and specifically'"
directed to the enforceability of an arbitration clause was to be decided by the court, not
an arbitrator. Townsend, 173 Wash. 2d at 458. It characterized a court's task in deciding
whether a dispute over enforceability should be referred to an arbitrator as being to
"review the facts to determine whether the ... challenge to the arbitration clause is
sufficiently discrete to be decided by the court under McKee or whether it is so wrapped
into [the party's] general allegations regarding the [underlying contract] that both issues
must be decided by an arbitrator under Prima Paint and Buckeye." ld. at 459.
The Honns' challenge was based on the Garretts' alleged breach oflease
covenants that the Honns argued triggered their optional remedy of terminating the lease.
There was no discrete challenge to the arbitration clause. Although the trial court
11
No. 30620-8-III (consolidated with Nos. 30668-2-III; 31177-5-III)
Garrett Ranches LLC v. Larry Honn Family LLC
vacillated over the proper procedure, it ultimately and correctly determined that it was for
the arbitrators to determine whether the Honns had effectively terminated the lease.
II
The Honns next argue that the trial court committed legal error in requiring the
parties to arbitrate real estate purchase terms. They contend that arriving at real estate
purchase terms was outside the scope of their agreement to arbitrate and also that courts
cannot create terms for a contract. 5
In the arbitration hearing, the Garretts supported their argument that the arbitrators
had authority to fix remaining terms by citing, among other cases, Valley Garage, Inc. v.
Nyseth,4 Wn. App. 316,481 P.2d 17 (1971). In that case, the appellate court held that an
option agreement that contained a description of the subject property and a method for
determining price could be specifically enforced and that an arbitration clause authorized
arbitrators to resolve the other, nonessential terms.
On appeal, the Garretts argue that we need not concern ourselves with the
substantive legal authority because the Honns are procedurally barred from raising these
arguments for several reasons: they are raising them for the first time in their first and
second appeals (Causes 30620-8-III and 30668-2-III); the time for appealing the first,
5 They also reiterate their argument that any obligation to arbitrate ended upon
service oftheir notices of termination, but the arbitrators found no breach that would
result in termination, as addressed in part 1.
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No. 30620-8-111 (consolidated with Nos. 30668-2-111; 31177-5-111)
Garrett Ranches LLC v. Larry Honn Family LLC
2010 arbitration award passed without appeal; and in the third appeal, Cause 31177-5-111,
the trial court's order denying the Honns' motion to vacate is not appealable and their
motion to vacate was in any event untimely. We first consider these procedural
arguments.
Did the Honns lose the right to appeal the trial court's order confirming
the first, 2010 award by not taking an immediate appeal?
The Garretts argue that the issues related to the first, 2010 award cannot be raised
because the time for appeal of the order confirming that award passed without appeal.
The order confirming that award was entered by the superior court in January 2011.
RCW 7.04A.280(1)(c) provides that "[a]n appeal may be taken from ... [a]n order
confirming ... an award." (Emphasis added.) RCW 7.04A.280(2) provides that "[a]n
appeal under this section must be taken as from an order or ajudgment in a civil action"
and RAP 5.2(a) provides that "a notice of appeal must be filed in the trial court within ...
30 days after the entry of the decision of the trial court that the party filing the notice
wants reviewed."
In itemizing the orders from which appeal "may" be taken, the statute is similar to
RAP 2.2, which we apply as permissive. As explained by Professor Tegland:
The decisions listed in RAP 2.2 are best thought of as an opportunity
to appeal. The fact that an interlocutory decision is listed in RAP 2.2 does
not necessarily mean that a timely appeal must be taken from that decision
in order to secure appellate review. The rules allow the aggrieved party to
wait until final judgment has been entered before appealing, and an appeal
13
No. 30620-8-111 (consolidated with Nos. 30668-2-111; 31177-5-111)
Garrett Ranches LLC v. Larry Bonn Family LLC
from the final judgment brings up for review all interlocutory decisions,
including previously appealable decisions.
2A KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE RAP 2.2, at 103 (7th
ed.2011). In Fox v. Sunmaster Products, Inc., the Supreme Court applied this analysis in
holding that even where a partial summary judgment has been certified as a final
judgment under CR 54(b), the certification as final creates a choice to appeal at that time
but does not deprive a party of the alternative of awaiting a final judgment. 115 Wn.2d
498,504, 798 P.2d 808 (1990).
Of course, a party forgoes early appeal at its peril unless it is confident there will
be a later appealable order that will be prejudicially affected by the court's objectionable
decision. Where parties anticipate a later order, though, it is not uncommon to defer an
appeal in order to wait and see the final outcome.
The Honns were able to do that here. In entering the first, 2010 award, the
arbitrators reserved jurisdiction to issue a further award to address any unagreed real
estate purchase terms. Given what has transpired, the Honns might have foreseen that
they would not reach agreement with the Garretts and that further substantive awards and
confirming orders would therefore be required. Any later appealable order confirming
arbitrated real estate purchase terms would be prejudicially affected by the trial court's
order confirming the first award, so appeal of the later order would present an
opportunity for review of the court's earlier decisions. The Honns did not lose the right
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No. 30620-8-II1 (consolidated with Nos. 30668-2-III; 31 I 77-5-III)
Garrett Ranches LLC v. Larry Bonn Family LLC
to appeal the order granting the motion to compel by not taking an immediate appeal
from the order confirming the first award.
Does the Bonns' failure to raise the present arguments in the trial court
prevent them from raising those arguments on appeal in
Cause 30668-2-lII?
The Garretts next argue that the Honns' second assignment of error cannot be
raised in their first and second appeals (Causes 30620-8-II1 and 30668-2-III) because they
never raised those arguments in the trial court either before or in connection with the
decisions we are being asked to review: the order compelling arbitration and the order
confirming the first arbitration award. We have already held that the first appeal must be
dismissed. We examine this argument as it relates to the second appeal, Cause 30668-2­
III.
Review of the record confirms that the issues raised by the Honns' second
assignment of error were never raised by the Honns in resisting the second arbitration
hearing or in response to the Garretts' motions for orders confirming the awards. As a
result, the trial court never had an opportunity to consider the issues or arguments in
connection with any decision reviewable in Cause 30668-2-111.
RAP 2.5(a) states the general rule for appellate disposition of issues not raised in
the trial court: appelIate courts wi1l not entertain them. State v. Scott, 110 Wash. 2d 682,
685, 757 P.2d 492 (1988). We will not consider the second assignment of error or the
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No. 30620-8-111 (consolidated with Nos. 30668-2-111; 31177-5-111)
Garrett Ranches LLC v. Larry Honn Family LLC
issues it raises in Cause 30668-2-111, since they are being raised in that case for the first
time on appeal.
May the present arguments be raised in connection with the Honns' third
appeal, Cause 311 77-5-lII?
We finally turn to the Honns' third appeal, seeking review of the trial court's
September 2012 order denying their motion to vacate. The Garretts argue that there are
two procedural bars to the Honns' assignments of error in the third appeal. First, they
argue that denial of a motion to vacate or modify an arbitration award is not an
appealable order under RCW 7.04A.280. Second, they argue that denial of the motion to
vacate can be affirmed on the basis that the motion was untimely.
Considering their first argument first, RCW 7.04A.280(1) identifies the orders and
judgments from which an appeal may be taken. Denial of a motion to vacate an
arbitration award is not included. The provision does state that an appeal may be taken
from "[a] final judgment entered under this chapter." RCW 7.04A.280(l)(f). But even
though the motion to vacate includes a fee award and a "judgment summary" reflecting
that judgment liability, it falls short of disposing of all the issues as to all the parties, the
usual concept of a final judgment. See 2A TEGLAND, supra, at 104 (citing Collins v.
Miller, 252 U.S. 364,40 S. Ct. 347,64 L. Ed. 616 (1920)). We agree, then, that the
Honns' third appeal, Cause 31177-5-111, must be dismissed.
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No. 30620-8-II1 (consolidated with Nos. 30668-2-III; 31177-5-III)
Garrett Ranches LLC v. Larry Honn Family LLC
Even if the order were appealable, we agree with the Garretts' second procedural
argument as well: the trial court's order can be affirmed on the basis that the Honns'
motion to vacate was filed too late. There was no attempt to file the motion until
July 2012 and it was not effectively filed until August. The Honns' motion asked the
court to vacate or modify not only the arbitrators' third, June 2012 award, but the second
award entered by the arbitrators in January 2012. Generally, a motion to vacate must be
filed within 90 days after the movant receives notice of an award. RCW 7.04A.230(2).
"The 90-day period established by [RCW 7.04A.230] is considered a statute of
limitations." MBNA Am. Bank, NA v. Miles, 140 Wash. App. 511, 514, 164 P.3d 514
(2007).
The Honns attempt to excuse their untimeliness by claiming that the January
award was an "initial arbitration award" and that "[t]he arbitration award was not
complete and the parties agreed to give the arbitrators additional time to file a supplement
to complete the award." CP at 362. They suggest that the award became final only when
the arbitrators filed their award of attorney fees.
This characterization is belied by the record, which reveals no agreement by the
parties to "give the arbitrators additional time." Rather, the second, January 2012 award
included the arbitrators' decision that they would award attorney fees and it set a timeline
for entertaining evidence and arriving at the amount. There was nothing in the award to
suggest that it was not otherwise final. Calling the award "nonfinal" cannot be reconciled
17
No. 30620-8-111 (consolidated with Nos. 30668-2-111; 31177-5-111)
Garrett Ranches LLC v. Larry Honn Family LLC
with language requested in the February 2012 order confirming it, which characterized
the order as a "final order on the issue of the option to purchase & sale contract, & all
other matters raised at arbitration." CP at 242.
RCW 7.04A.230(2) unambiguously provides that, except where based on a late-
discovered fraud or corruption, a motion to vacate must be filed "within ninety days after
the movant receives notice of the award." The record on appeal includes a certificate of
service of the award on the Honns by the Garretts on February 3, 2012; we do not know
(nor do we need to know) whether the arbitrators provided the award to the Honns even
earlier.
It was the second, January 2012 award that decided the terms of the real estate
purchase on which the parties had been unable to agree. Any motion to vacate that award
was required to have been filed by early May 2012 at the latest. We may affirm the trial
court on any basis supported by the record. In re Marriage ofRideout, 150 Wash. 2d 337,
358, 77 P.3d 1174 (2003). The Honns' motion to vacate the award based on the court's
allegedly erroneous referral of unagreed real estate purchase terms to arbitration was
untimely.
III
The Honns' third assignment of error is that the arbitrators erred by ruling in
December 2010 that they retained jurisdiction to determine the terms of a contract of sale
from the Honns to the Garretts if the parties could not arrive at mutually agreeable terms.
18
No. 30620-8-III (consolidated with Nos. 30668-2-III; 31177-5-III)
Garrett Ranches LLC v. Larry Honn Family LLC
We review a trial court's decision to confirm or vacate an arbitration award de
novo. Fid. Fed. Bank, FSB v. Durga Ma Corp., 386 F.3d 1306, 1311 (9th Cir. 2004).
We do not engage in any direct review of the arbitrators' decisions at all. Our inquiry
into an arbitrator's award is limited to any order of the superior court that confirms,
vacates, modifies, or corrects it. Barnettv. Hicks, 119 Wn.2d 151,157,829 P.2d 1087
(1992). "Thus, in the case of an appeal from an arbitrator's award, an appellate court is
strictly proscribed from the traditional full review." Id.
We have addressed the Bonns' assignments of error to the trial court's orders. It is
only the trial court's orders that are reviewable here.
IV
The Garretts have requested an award of attorney fees and costs on appeal. They
rely on paragraph 16 of the lease, which provides:
16. Litigation: In the event either or both parties shall be reasonably
required to retain an attorney to enforce any of the provisions of this Lease,
the prevailing party in any such enforcement proceedings shall have
awarded to them attorney's fees and costs to the extent reasonably incurred,
in addition to such other relief as exists under the provisions of this Lease
or by operation of law. Venue shall be in Whitman County, Washington.
CP at 19.
Under RCW 4.84.330, the prevailing party is entitled to attorney fees for actions
on a lease where the lease provides for attorney fees. A party may request reasonable
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No. 30620-8-111 (consolidated with Nos. 30668-2-111; 31177-5-111)
Garrett Ranches LLC v. Larry Honn Family LLC
attorney fees on appeal under RAP 18.1. The Garretts are the prevailing party on appeal.
We award them attorney fees and costs subject to compliance with RAP 18.1(d).
We dismiss the Honns' appeals in Causes 30620-8-III and 31177-5-111. The trial
court is affirmed in Cause 30668-2-III.
A majority of the panel has determined that this opinion will not be printed in the
Washington Appellate Reports but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Brown, J. .
Kulik, J.
20