Simon v. Teton Bd. of Realtors

• Decision Date: 11 April 2000
• Docket Number: No. 99-129.,99-129.
• Citation: 4 P.3d 197
• Parties: Bruce SIMON, d/b/a Prime Properties of Jackson Hole, Appellant (Plaintiff), v. TETON BOARD OF REALTORS, Appellees (Defendant).
• Court: Wyoming Supreme Court

4 P.3d 197

Bruce SIMON, d/b/a Prime Properties of Jackson Hole, Appellant (Plaintiff), v. TETON BOARD OF REALTORS, Appellees (Defendant).

No. 99-129.

Supreme Court of Wyoming.

April 11, 2000.

Representing Appellant: Clay D. Geittmann of James K. Lubing Law Offices, Jackson, Wyoming.

Representing Appellees: Andrea L. Richard of Rothgerber, Johnson & Lyons, LLP, Cheyenne, Wyoming.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

THOMAS, Justice.

The resolution of this case requires this Court to rule upon the efficacy of a provision for procedural review, found in the National Association of Realtors Code of Ethics and Arbitration Manual (the manual), and the ninety-day period for filing an application to vacate an arbitration award set forth in the Uniform Arbitration Act, Wyo. Stat. Ann. §§ 1-36-101 through 1-36-119 (Lexis 1999). Bruce Simon, d/b/a Prime Properties of Jackson Hole (Simon), acknowledges that his claimed application to vacate the award (actually an action for declaratory judgment) was not filed within the ninety-day period provided in Wyo. Stat. Ann. § 1-36-114(b). Simon contends, however, that the statutory period was tolled by the filing of a request for procedural review in accordance with the manual, which was used by the Teton Board of Realtors (the Board). We agree with the ruling of the district court that the request for procedural review did not enlarge the time provided in the statute for an application to vacate the award. The Order Granting Defendant's Motion to Dismiss, entered in the district court, is affirmed.

This statement of the issues is found in the Brief of Appellant:

1. Did the Trial Court Err when it granted Appellee's Motion to Dismiss on the ground that Appellant failed to timely file his claim under the Wyoming Uniform Arbitration Act, W.S. § 1-36-114(b)?

2. Did the Trial Court Err when it granted Appellee's Motion to Dismiss on the ground that Appellant's Complaint and Amended Complaint failed to invoke the jurisdiction of the Court pursuant to the Wyoming Uniform Arbitration Act, W.S. § 1-36-101 et seq.?

3. Did the Trial Court Err when it granted Appellee's Motion to Dismiss on the ground that Appellant's Complaint failed to state a claim upon which relief can be granted?

This Statement of the Issues is found in the Brief of Appellee:

I. The district court correctly concluded that the Arbitration Act did not provide jurisdiction over appellant's claims

II. The district court properly concluded that appellant failed to state any claim upon which relief could be granted

III. The district court correctly concluded that appellant's claim was untimely and precluded by Wyo. Stat. 1-36-114(b)

In December 1997, Simon, acting as a broker, received a commission for the sale of a lot located at the Jackson Hole Golf and Tennis Estates. After the sale was completed, Jackson Hole Realty claimed it was entitled to a portion of Simon's commission. Simon's agreement with the Board provided that such a dispute would be submitted to binding and mandatory arbitration. Neither Simon nor the Board objected to the panel of arbitrators that was selected, and at the conclusion of the hearing, held on August 6, 1998, both parties confirmed they had been afforded adequate opportunity to testify, present evidence and witnesses, and conduct cross-examination. The arbitrators, governed by the manual, decided that Simon owed Jackson Hole Realty $22,620.00, to be paid to the Board within twenty-one days from the August 6, 1998, written decision. According to the procedures established by the National Association of Realtors, the award was to be final, binding, and not reviewable.

Under the terms of the manual, a party in binding arbitration may not obtain any reconsideration of the arbitration award. However, the manual, in Section 53,¹ does provide for a limited procedural review of deficiencies or irregularities to ensure due process:

(a) * * * Notwithstanding the foregoing, a party to an arbitration proceeding may appeal to the Board of Directors only with respect to such alleged irregularities occurring in the conduct of the proceeding as may have deprived the party of fundamental "due process".

(b) After the award has been served upon each of the parties, they have twenty (20) days to request procedural review of the arbitration hearing procedure by the Board of Directors. If no such review is requested, the award becomes final and binding following the twenty (20) day period. However, if procedural review is requested, the award is not considered final and binding until after the Board of Directors has concluded that the hearing was conducted in a manner consistent with the Board's procedures and the parties have been afforded due process.

(c) The nonprevailing party shall have twenty (20) days following receipt of the award to request procedural review of the arbitration hearing procedure or to have legal counsel notify the Board Secretary or Executive Officer that a legal challenge to the validity of the award had been initiated.

On August 26, 1998, which can logically be inferred to be the twentieth day after the award was served upon him, Simon requested such a procedural review, asserting that he was denied due process in the arbitration proceeding. On November 13, 1998, the procedural review panel met to consider Simon's claim, and the panel determined that the arbitration proceeding complied with due process in all respects.

Simon was not satisfied with the result of the arbitration, and, on November 30, 1998, he filed a Complaint for Declaratory Judgment in an endeavor to overturn the arbitration award. On December 14, 1998, Simon filed an Amended Complaint for Declaratory Judgment. The Board moved to dismiss the complaint on December 18, 1998. Both parties submitted briefs and, after a hearing on the Motion to Dismiss, the district court entered its Order Granting Defendant's Motion to Dismiss. That order recited as findings:

1. Plaintiff's Complaint and Amended Complaint fail to invoke the Court's jurisdiction pursuant to the Wyoming Uniform Arbitration Act. Wyo. Stat. § 1-36-113;² 2. To the extent Plaintiff's Complaints contain allegations based on the Uniform Declaratory Judgment Act, Plaintiff fails to state a claim upon which relief can be granted and therefore dismissal is appropriate pursuant to Rule 12(b)(6);

3. More than 90 days have passed since delivery of the arbitration award to Plaintiff and therefore his claim is untimely and precluded under the terms of the Wyoming Uniform Arbitration Act. Wyo. Stat. § 1-36-114(b).

Simon has appealed to this Court from the Order Granting Defendant's Motion to Dismiss.

When reviewing a motion to dismiss presented under W.R.C.P. 12(b)(6) for failure to state a claim upon which relief may be granted, we accept as true the facts alleged in the complaint, and consider them in the light most favorable to the party opposing dismissal. Giacchino v. Estate of Stalkup, 908 P.2d 983, 985 (Wyo.1995); Feltner v. Casey Family Program, 902 P.2d 206, 207 (Wyo.1995); Martinez v. Associates Financial Services Co. of Colorado, Inc., 891 P.2d 785, 787 (Wyo.1995); Veile v. Board of County Com'rs of Washakie County, 860 P.2d 1174, 1177 (Wyo.1993); Park County v. Cooney, 845 P.2d 346, 349-50 (Wyo.1992), cert. denied, 510 U.S. 813, 114 S.Ct. 60, 126 L.Ed.2d 30 (1993); Moxley v. Laramie Builders, Inc., 600 P.2d 733, 734 (Wyo.1979). Dismissal under W.R.C.P. 12(b)(6) is a drastic remedy, which should be granted sparingly, and is appropriate only when it is certain the plaintiff cannot assert any facts that would entitle him to relief. Duncan v. Afton, Inc., 991 P.2d 739, 742 (Wyo.1999); Gillis v. F & A Enterprises, 934 P.2d 1253, 1255 (Wyo.1997); Kautza v. City of Cody, 812 P.2d 143, 145 (Wyo.1991); Mostert v. CBL & Associates, 741 P.2d 1090, 1092 (Wyo.1987). We have said, with respect to dismissal when an action is barred by the statute of limitations:

Although dismissal is a drastic remedy which should be granted sparingly, a dismissal is proper where the complaint reflects that the action is barred by the applicable statute of limitations. Feltner v. Casey Family Program, 902 P.2d 206, 208 (Wyo.1995); Boller v. Western Law Associates, P.C., 828 P.2d 1184, 1186 (Wyo. 1992).

Gillis, 934 P.2d at 1254. The proper application and interpretation of a statute is a question of law that we review de novo. French v. Amax Coal West, 960 P.2d 1023, 1027 (Wyo.1998); Pecha v. Smith, Keller & Associates, 942 P.2d 387, 390 (Wyo.1997); Chevron U.S.A., Inc. v. State, 918 P.2d 980, 983 (Wyo.1996).

The district court dismissed Simon's complaint for lack of subject matter jurisdiction because he failed to file an application to vacate the award within ninety days. The requirement for filing such an application is found in Wyo. Stat. Ann. § 1-36-114(b), which provides:

(b) An application for vacating an award shall be made within ninety (90) days after delivery of a copy of the award to the applicant, or if predicated upon corruption, fraud or other undue means it shall be made within ninety (90) days after the grounds are known or should have been known.

The Board maintains that because more than ninety days passed between August 6, 1998, when the arbitration hearing panel entered its award, and November 30, 1998, the day Simon filed his complaint in the district court, Simon exceeded the statutory time limit, and the district court, therefore, did not have subject matter jurisdiction.

Simon counters that the arbitration award was not final until the Board ruled on his request for a procedural review of the decision. First, Simon contends that the lack of a definition of "award" or "final award" in Wyo. Stat. Ann. § 1-36-114(b) permits this conclusion. To qualify as an award, all that is required is that it "be in writing and signed by the arbitrators joining in the decision." Wyo. Stat. Ann. § 1-36-110(a). The record is clear that such an...