Barnett v. Hicks

• Decision Date: 21 May 1992
• Docket Number: No. 58170-3,58170-3
• Citation: 119 Wn.2d 151,829 P.2d 1087
• Parties: Donald BARNETT, Appellant, v. Jack A. HICKS, Jack H. DuBois, and E. Scott Hartley, individually and as the Board of Directors of Community Chapel and Bible Training Center and Community Chapel and Bible Training Center, Respondents.
• Court: Washington Supreme Court

Page 151

119 Wn.2d 151

829 P.2d 1087

Donald BARNETT, Appellant, v. Jack A. HICKS, Jack H. DuBois, and E. Scott Hartley,

individually and as the Board of Directors of Community

Chapel and Bible Training Center and Community Chapel and

Bible Training Center, Respondents.

No. 58170-3.

Supreme Court of Washington,

En Banc.

May 21, 1992.

Reconsideration Denied Aug. 19, 1992.

Edwards, Sieh, Wiggins & Hathaway, Charles K. Wiggins and Laura Buckland, Seattle, for appellant.

Rohan, Goldfarb & Shapiro, P.S., Robert J. Rohan and Sylvester, Ruud, Petrie & Cruzen, David G. Knibb, Seattle, Wash., for respondents.

BRACHTENBACH, Justice.

This is the second appeal arising from disputes between plaintiff, the founding pastor of the Community Chapel and Bible Training Center (Chapel), and defendants, the Board of Directors/Elders of the Chapel. In the first appeal we reversed a partial summary judgment in favor of defendants and remanded for further proceedings. Barnett v. Hicks, 114 Wash.2d 879, 792 P.2d 150 (1990).

Upon remand, the matter was transferred by stipulation to retired Superior Court Judge Walter J. Deierlein. After 10 days of testimony Judge Deierlein made findings of fact, conclusions of law and judgment upholding removal of plaintiff as pastor and officer of the Chapel.

We do not reach the merits, but rather dismiss the appeal on our own motion. By submitting the matter to arbitration the parties limited severely the scope of appellate review. None of the statutory grounds for appellate review is claimed; review on the merits is not permitted.

The essential question is whether the proceedings below were pursuant to the arbitration statute, RCW 7.04, or were a reference hearing under RCW 4.48. The difference between the proceedings is crucial to the question of appellate review. In summary, if it was an arbitration proceeding, review is controlled entirely by RCW 7.04 which restricts review in the trial court and on appeal to grounds contained in RCW 7.04.160-.170. If it were a trial before a referee there would be full appellate review. RCW 4.48.120(2). We conclude that the below proceedings constitute statutory arbitration. The parties' stipulation for full appellate review is not recognized.

A review of the proceedings will demonstrate why we necessarily conclude that they constituted statutory arbitration. However, in order to fully explain our holding, we will first compare the differences between an arbitration proceeding and a trial before a referee.

As a preliminary matter, we note this court has a duty to determine the extent of appellate review even though not raised by the parties. See Dux v. Hostetter, 37 Wash.2d 550, 555, 225 P.2d 210 (1950).

Both procedures, as voluntary options to a trial in superior court, require written consent. RCW 7.04.010 (two or more parties may agree in writing to submit to arbitration); RCW 4.48.010 (written consent of parties required for a trial before a referee). An arbitration agreement is valid, enforceable and irrevocable unless grounds exist for the revocation of such an agreement. RCW 7.04.010; Tombs v. Northwest Airlines, Inc., 83 Wash.2d 157, 160, 516 P.2d 1028 (1973). However, mandatory arbitration can be required by a county rule and a trial before a referee can be ordered without the parties' consent. RCW 7.06.010; RCW 4.48.020.

Each has different notice requirements. A notice of an intent to arbitrate is between the parties to an agreement to arbitrate. RCW 7.04.060. The notice must include a warning that unless the served party files a motion to stay arbitration within 20 days of service, that party is barredfrom contesting the existence or validity of the agreement or the failure to comply with it. RCW 7.04.060.

The notice of a trial before a referee is a more public event. At least 5 days before the trial, the referee must advise the clerk of the court of the time and place set for trial. RCW 4.48.130(1). The clerk must then post a notice in a conspicuous place in the courthouse which includes the names of the parties, the time and place for trial, the name of the referee and a statement indicating that the procedure is consensual. RCW 4.48.130(1). Additionally, a consensual trial before a referee is an open court proceeding which anyone can attend. RCW 4.48.130(2).

Generally, the parties to either proceeding may choose the arbitrator or referee who is to preside. RCW 7.04.050; RCW 4.48.030. Each statute provides a method for the selection of an arbitrator or referee in the event that the parties fail to make the selection. RCW 7.04.050; RCW 4.48.030. Although there is not a statutory method to challenge the judicial appointment of an arbitrator, each party has the right to challenge the appointment of a referee consistent with the rules and procedure governing jury selection, save peremptory challenges. RCW 4.48.050.

The powers afforded to an arbitrator and to a referee are distinct. An arbitrator's powers are governed by the agreement to arbitrate. Sullivan v. Great Am. Ins. Co., 23 Wash.App. 242, 246, 594 P.2d 454 (1979). By statute, arbitrators may appoint a time and place for the proceedings, may adjourn them, and may postpone them. RCW 7.04.070.

An order of reference may limit or direct a referee's powers. RCW 4.48.060(1). However, a referee has the power to try an issue of law or fact in a civil action, to ascertain a fact for the court and either report the fact or take and report evidence presented with respect to that fact, and to execute an order, judgment or decree or other power or duty authorized by law. RCW 2.24.060.

The proceedings before either official also differ significantly. Arbitration can be casually structured. Tombs v. Northwest Airlines, Inc., 83 Wash.2d 157, 161, 516 P.2d 1028 (1973) (arbitrators are not expected or required to always follow the strict and technical rules of law); Thorgaard Plumbing & Heating Co. v. County of King, 71 Wash.2d 126 132, 426 P.2d 828 (1967) (arbitration depends for its existence and for its jurisdiction upon the parties having contracted to submit to it, and upon the arbitration statute); Northern State Constr. Co. v. Banchero, 63 Wash.2d 245, 248, 386 P.2d 625 (1963) (although arbitration is in the nature of a judicial inquiry, the standards of judicial conduct and efficiency to which arbitrators are held are markedly different from those imposed on judicial officers).

A trial before a referee maintains the formality of the trial court subject to the order of reference. RCW 4.48.060(1). Unless otherwise agreed, the rules of pleading, practice, procedure, and evidence apply to a trial before a referee and the referee has similar powers to a trial court judge. RCW 4.48.060(1); RCW 2.24.060.

Further, each official renders a different result; an arbitrator gives an award while a referee furnishes a report. An award issued by an arbitrator must be in writing, signed by the arbitrator, and a copy must be promptly given to each party or their attorney. RCW 7.04.140. The statute does not require a separate statement of findings of fact and conclusions of law in an arbitrator's award. See also Hatch v. Cole, 128 Wash. 107, 109, 222 P. 463, aff'd, 130 Wash. 706, 226 P. 1119 (1924); Bachelder v. Wallace, 1 Wash. Terr. 107, 108-09 (1860) (findings of fact and conclusions of law not required and need not be stated separately); Westmark Properties, Inc. v. McGuire, 53 Wash.App. 400, 403, 766 P.2d 1146 (1989) (a statement of reasons for an arbitrator's award is not part of the award).

A referee's report must contain findings of fact and conclusions of law. RCW 4.48.070. The report must be filed within 20 days after the conclusion of the trial before the referee and mailed to each party. RCW 4.48.080, .110.

The superior court's powers with respect to each proceeding also differ. A superior court may only confirm, vacate, modify or correct an arbitrator's award. RCW 7.04.150-.170. Such an action is strictly limited to the statutory bases for confirmation, vacation, modification or correction. Hatch, at 113, 222 P. 463 (a court will not review the decision of an arbitrator on the merits); Westmark, at 402-03, 766 P.2d 1146. If none of the statutory bases exists for vacation, modification or correction, the court must, on a motion of one of the parties within 1 year of the award, confirm the award. RCW 7.04.150.

A court may either affirm or set aside a referee's report. RCW 4.48.090. Such a decision may be based on the merits of the case. RCW 4.48.120(2); Hunley v. Ingle, 88 Wash. 446, 449, 153 P. 313 (1915) (a referee's findings are advisory).

Notwithstanding the above, "[t]he primary distinction between [a trial before a referee] ... and arbitration is that the decisions based on the former are appealable to an appellate court in the same manner as any other general trial court judgment, while the scope of review for decisions arising out of the latter are very narrow." Washington State Bar Ass'n, Alternative Dispute Resolution Deskbook: Arbitration and Mediation in Washington § 6B.2, at 6B-2 (1989). Review of an arbitrator's award does not include a review of the merits of the case. Hatch, at 109, 113, 222 P. 463; School Dist. 5, Snohomish Cy. v. Sage, 13 Wash. 352, 356-57, 43 P. 341 (1896). Rather, an appellate court's inquiry into an arbitrator's award is limited to that of the court which confirmed, vacated, modified or corrected that award. RCW 7.04.150-.170; Hatch, at 109, 222 P. 463; Westmark, at 402, 766 P.2d 1146. Thus, in the case of an appeal from an arbitrator's award, an appellate court is strictly proscribed from the traditional full review. RCW 7.04.220 does not alter this proscription.

Appellate review of a trial before a referee is not so limited. RCW 4.48.120(2) provides: "The decision of a referee entered as provided in this section may be reviewed in the same manner as if the decision was made by the court." Consequently, appellate review of a referee's...