Plus The Court Of Appeal could Not Review Merits Of The Dispute, Which Included Legal And Factual Bases Of The Arbitrator's Award.
After William Schwartz arbitrated with Joel Schwartz, the arbitrator declared William the prevailing party and awarded William $264,559.89 in fees and costs. The Superior Court confirmed the award, and Joel timely appealed. Schwartz v. Schwartz, D071445 (4/1 9/15/17) (Irion, Huffman, Haller) (unpublished).
Joel raised some interesting substantive issues on appeal, namely, that the fee award was largely based on work done by Oregon attorneys who had not been admitted pro haec vice, and that William had failed to beat Joel's 998 settlement offer. But Joel's substantive points were never considered by the Court of Appeal.
First, Joel waived the "out-of state-attorney" argument, by failing to raise it with the arbitrator or with the Superior Court judge. Second, because a mistake of law or fact is not a basis for reviewing the merits of an arbitration award, the Court did not need to address the merits of Joel's argument that William had not prevailed on Joel's 998 settlement offer after he turned down Joel's 998 settlement offer. Third, Joel apparently did not provide record references to support some of his arguments.
COMMENT: Arbitration proceedings may seem informal, but it is certainly important to raise objections in arbitration, to have a record, and to preserve the objections and the record in the Superior Court -- at least, where a substantial fee and cost award may be challenged later. And if one wants appellate review to include review of the merits, then the arbitration agreement needs to provide that the arbitrator who makes mistakes of law or of fact exceeds his powers.
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