Gen. Beer-Ne. Inc. v. Johnson Distrib., 2021AP998

CourtCourt of Appeals of Wisconsin
Writing for the CourtPER CURIAM.
PartiesGeneral Beer-Northeast Inc., Plaintiff-Respondent, v. Johnson Distributing, Inc., Defendant-Appellant.
Decision Date19 May 2022
Docket Number2021AP998

General Beer-Northeast Inc., Plaintiff-Respondent,
v.

Johnson Distributing, Inc., Defendant-Appellant.

No. 2021AP998

Court of Appeals of Wisconsin, District IV

May 19, 2022


This opinion will not be published. See Wis.Stat. Rule 809.23(1)(b)5.

APPEAL from an order of the circuit court for Portage County No. 2016CV205: PATRICIA BAKER, Judge. Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

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PER CURIAM.

¶1 Johnson Distributing, Inc., appeals a circuit court order that denied Johnson's motion to vacate an arbitration award. The arbitrator did not reach the merits of Johnson's dispute with General Beer-Northeast, Inc., but instead issued an award dismissing Johnson's arbitration filing on the ground that Johnson sought arbitration on an untimely basis. Johnson argues that the circuit court was required to declare the arbitration award null and to order arbitration on the merits because General Beer failed to file a timely motion to confirm the award. Johnson argues in the alternative that the circuit court erred by denying Johnson's motion to vacate the award because: (1) Johnson's motion to vacate was timely; (2) the motion to vacate was filed in the proper county; and (3) the award was unjust and contrary to public policy. We conclude that Johnson has not established that the failure of General Beer to confirm the award entitles Johnson to arbitration on the merits. We also conclude that the motion to vacate was untimely and therefore properly denied by the circuit court. We affirm.

¶2 In 2008, Central Waters Brewing Company entered into a distributor agreement with Johnson. After that agreement terminated in 2016, Central Waters entered into a distributor agreement with General Beer-Northeast, Inc. In June 2016, Johnson initiated an arbitration action to determine the amount that General Beer, as a "successor wholesaler," was obligated to pay Johnson as a "terminated wholesaler." See Wis. Stat. § 125.33 (2019-20).[1]

¶3 The arbitrator addressed as his sole topic the timeliness of the arbitration action and produced an award on that topic, which was delivered to the

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parties on September 13, 2019.[2] In that award, the arbitrator dismissed the arbitration action on the ground that Johnson's arbitration filing was untimely.

¶4 On March 18, 2021, Johnson moved the circuit court to vacate the arbitration award. It argued that the award was a nullity because General Beer failed to move to confirm the award within one year. As result, Johnson argued, the court should order arbitration to proceed on the merits. In response, General Beer argued that the only way for Johnson to obtain an order for arbitration on the merits would be to establish a basis to vacate the award. It argued that Johnson's motion to vacate should be denied because it was untimely, filed in the wrong county, and failed to cite any statutory grounds that could require the court to vacate the award. The circuit court agreed with General Beer that the motion to vacate was not properly filed and on that ground denied the motion. Johnson appeals.

¶5 We first address Johnson's argument that the circuit court was required to declare the arbitration award a nullity because General Beer failed to move to confirm the award within one year under Wis.Stat. § 788.09. See Pick Indus. v. Gebhard-Berghammer, Inc. (Pick II), 264 Wis. 353, 357B, 60 N.W.2d 254 (1953) (stating that, in the absence of a timely motion to confirm an arbitration award, "the stipulation to arbitrate and the entire arbitration proceedings" were null).[3] Johnson argues that, under Pick II, the determination of

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the arbitrator that the arbitration filing was untimely is null. From that premise, Johnson contends that the circuit court was required to order the parties to proceed to arbitration on the merits.

¶6 General Beer responds that a motion to confirm an award is permissive, not mandatory. See Wis. Stat. § 788.09 ("At any time within one year after the award is made any party to the arbitration may apply to the court in and for the county within which such award was made for an order confirming the award." (emphasis added)); Milwaukee Police Ass'n v. City of Milwaukee, 92 Wis.2d 185, 191, 285 N.W.2d 138 (1979) ("[T]here is no requirement in … the statutes that either party to an arbitration proceeding pursue the award to a judicial determination. The parties to an arbitration may accept the award or presumably agree upon some other settlement after the award has been made."). General Beer argues that the only mechanism available to Johnson to have the circuit court vacate the arbitration award would be a proper motion to vacate under Wis.Stat. § 788.10, and that Johnson may not avoid the statutory requirements for vacating an arbitration award by re-casting its motion as something other than a motion to vacate.

¶7 We conclude that Johnson has not established that it is entitled to an order directing the parties to proceed with arbitration on the merits based on General Beer's failure to timely move the circuit court to confirm the award. Johnson bases its argument that it is entitled to arbitration on the merits on the statement in Pick II that an arbitration award is null if it was not timely confirmed. We are not persuaded that Pick II compels that outcome on the facts here.

¶8 The underlying litigation in the Pick case was initiated when Pick filed a complaint for damages against Gebhard-Berghammer in the circuit court.

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See Pick II, 264 Wis. at 357B. After Gebhard-Berghammer filed a counterclaim, the parties stipulated to arbitrate all of the disputes that had been the subject of the circuit court litigation to that point. Id. The arbitrator issued an award to Pick, and Pick moved to confirm the award. Id. at 357B. The parties then returned to circuit court to resolve a dispute (based on a declaratory judgment claim) as to whether the arbitration had been based on statutory or common law. See Pick Indus. v. Gebhard-Berghammer, Inc. (Pick I), 264 Wis. 353, 59 N.W.2d 798 (1953). Our supreme court ultimately stated that the arbitration was based on statute, and that Pick's motion to confirm the award was untimely under the then-version of Wis.Stat. § 298.09. Pick II, 264 Wis. at 357A-357B. The Pick II court stated that, because Pick had failed to timely move to confirm the award, "the stipulation to arbitrate and the entire arbitration proceedings [were] a...

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