3000 Inv. Corp. v. Teed

• Decision Date: 28 July 2021
• Docket Number: A172996
• Citation: 494 P.3d 378 (Mem),313 Or.App. 619
• Court: Oregon Court of Appeals
• Parties: 3000 INVESTMENT CORP., Plaintiff-Respondent, v. Heather A. TEED, individually and as Personal Representative for Ronald L. Teed, Defendant-Appellant.

313 Or.App. 619

494 P.3d 378 (Mem)

3000 INVESTMENT CORP., Plaintiff-Respondent,

v.Heather A. TEED, individually and as Personal Representative for Ronald L. Teed, Defendant-Appellant.

A172996

Court of Appeals of Oregon.

Argued and submitted June 29, 2021.

July 28, 2021

George W. Kelly, Eugene, argued the cause and filed the briefs for appellant.

Megan K. Houlihan argued the cause for respondent. On the brief were Steve D. Larson and Stoll Stoll Berne Lokting & Shlachter P.C.

Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.

PER CURIAM

Defendant appeals a judgment confirming an arbitration award in plaintiff's favor. She contends that the trial court erred in concluding that the arbitrator did not "exceed[ ] the arbitrator's powers" within the meaning of ORS 36.705(1)(d) in concluding that (1) the parties’ agreement required defendant to perform certain work as part of the agreed-upon "stabilization work" to protect plaintiff's easement on defendant's land; and (2) a provision providing for a "monthly incentive fee" for delay in completion of the "stabilization work" was not void as against public policy. On review for legal error, Nieto v. City of Talent , 295 Or.App. 625, 629, 436 P.3d 82 (2019), we affirm.

As we have explained, when an arbitrator is empowered to decide a legal issue, the arbitrator acts within the arbitrator's powers by deciding the issue, even if the arbitrator decides it in a way a reviewing court thinks is incorrect:

" ‘[T]he arbitrator acts within the bounds of his authority not only when he decides [that] question of law correctly according to judicial standards, but also when he applies the law in a manner which a court would regard as erroneous. * * * Neither a mistake of fact or law vitiates the award.’ Brewer v. Allstate Insurance Co ., 248 Or. 558, 561-62, 436 P.2d 547 (1968) (citation and internal quotation marks omitted). [That standard] does not permit us to reverse [an arbitrator's] order simply because the decision was predicated on an error of law; rather, the error must relate to the [arbitrator's] authority ."

Nieto , 295 Or.App. at 629, 436 P.3d 82 (emphasis, omission, and second brackets in original). Although certain legal or factual errors can be so egregious so as to be said to "exceed[ ] the arbitrator's powers," it is only those "so grossly erroneous as to strike at the heart of the decision-making process." Brewer , 248 Or. at 562-63, 436 P.2d 547 ; see also Native Sun v. L & H Development, Inc. , 149 Or.App. 623, 629, 944 P.2d 995 (1997), rev. den. , 327 Or. 82, 961 P.2d 216 (1998) (explaining and applying Brewer standard). Pertinent to this case, we frequently have held that alleged errors by an arbitrator in interpreting and applying the provisions of a contract do not constitute the sort of "gross error" that would permit a...