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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Haeg v. Cole (01/30/2009) sp-6334
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| DAVID S. HAEG, | ) |
| ) Supreme Court No. S- 12771 | |
| Appellant, | ) |
| ) Superior Court No. 3KN-06- 844 CI | |
| v. | ) |
| ) O P I N I O N | |
| BRENT R. COLE, | ) |
| ) No. 6334 January 30, 2009 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Harold M. Brown, Judge.
Appearances: David S. Haeg, pro se,
Soldotna. Brent R. Cole, pro se, Anchorage.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
PER CURIAM
David Haeg appeals the decision of the superior court
that affirmed an arbitration award regarding fees charged by
Haegs former attorney, Brent Cole. Haeg hired Cole to represent
him in a criminal case and paid for most of Coles services. When
plea negotiations broke down, Haeg fired Cole and refused to pay
the outstanding balance of Coles fee. Haeg hired another
attorney, went to trial, and lost. Haeg then filed a fee
arbitration proceeding with the Alaska Bar Association, arguing
that Coles services were defective and that Cole should return
the fees Haeg had paid. The arbitration panel decided in Coles
favor and awarded Cole the fees still outstanding. Haeg appealed
to the superior court. The superior court modified the amount of
the award to remedy a clerical error and otherwise affirmed the
panels decision. Haeg now appeals the superior courts decision
to this court. With one exception, we affirm the decision of the
superior court for the reasons expressed in the written decision
of the superior court.1
The exception concerns the arbitration panels
affirmative award to Cole of fees still due him. This amount, as
corrected by the superior court, was $1,689.19. Under the
Revised Uniform Arbitration Act applicable in Alaska, a reviewing
court is required to modify or correct an award if the arbitrator
has made the award on a claim not submitted to the arbitrator.2
This statute is applicable to attorney fee arbitration awards
under Alaska Bar Rule 40(t).3 Cole did not present a claim for
unpaid fees to the arbitration panel. The award to him of unpaid
fees was therefore an award on a claim not submitted.4 On remand
we direct that the order of the superior court be modified by
deleting the affirmative award of fees in favor of Cole.
For these reasons the decision of the superior court is
MODIFIED in one respect and as so modified, the decision is
AFFIRMED. This case is REMANDED with directions to the superior
court to modify the decision in accordance with this opinion.
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT AT KENAI
DAVID S. HAEG, )
)
Appellant, )
)
v. )
)
BRENT R. COLE, )
)
Appellee. )
) Case No.: 3KN-06-844 CI
MEMORANDUM DECISION AND ORDER
David S. Haeg appeals the August 25, 2006 decision of the
Alaska Bar Association Fee Arbitration Panel (panel) awarding
Brent Cole $2,689.19. The Appellant alleges ten points on
appeal, arguing that the award was procured by fraud, there was
corruption among the arbitrators, there was partiality among the
arbitrators, the arbitrators exceeded their powers, the
arbitrators decision did not address the issues the appellant
presented, the arbitrators did not make a referral to discipline
the appellants counsel, the decision did not reflect the
evidence, the decision did not comply with the Alaska Rules of
Professional Conduct or Alaska Bar Rule 40, a large portion of
the official record of the proceedings has been lost, and that
the decision and award are in violation of the U.S. and Alaska
Constitutions.
For the reasons set forth below, the court modifies the
judgment of the panel to reflect the correct judgment of
$1,689.19.
CASE HISTORY
Both parties offer their own versions of what occurred
during the course of proceedings of the Appellants criminal
trial. However, the factual history of the Appellants criminal
case is a matter reserved for his criminal appeal. The only
issue before this court on appeal is whether there is a basis to
vacate or modify the panels decision. Therefore, the court only
offers an abbreviated case history to the point that it is
relevant to the current appeal.
The Appellant, David Haeg, retained the Appellee, Brent
Cole, as his counsel on April 9, 2004 after learning that he was
the subject of an investigation concerning Fish and Game
violations. The Appellant signed a fee agreement with the
Appellee, agreeing to pay $200.00 per hour for the Appellees
services. The Appellee sent the Appellant monthly bills and
represented the Appellant through the summer and fall of 2004.
Both parties offer differing versions of events of how the
criminal case progressed, but it appears that the panel accepted
the version presented by the Appellee. The only facts that are
relevant on this appeal are that the Appellant fired the Appellee
during these criminal proceedings prior to the time a plea
agreement could be entered, that the Appellant proceeded to take
his case to trial with a new attorney, and that the Appellant was
convicted at trial. The conviction led to the judge suspending
the Appellants hunting guide license for five years and
forfeiting his PA-12 aircraft.
The Appellant still had an amount left owing on his fee
agreement when he fired the Appellee, which he refused to pay.
The Appellee did not pursue the Appellant for this unpaid amount
and appeared willing to write the losses off. The Appellant then
filed grievances against the Appellee with the Bar and requested
that the Appellee be referred for discipline. The Appellant
subsequently filed for fee arbitration in an amount that exceeded
$5,000.00. Pursuant to Bar Rules, an arbitration panel was
convened. After oral argument, the panel issued a decision on
August 25, 2006 that awarded the Appellee the unpaid portion of
his fee agreement. This appeal followed.
STANDARD OF REVIEW
Alaska employs mandatory fee arbitration between clients and
attorneys if a client commences such an action.1 The court is to
give great deference to the arbitrators findings of fact and law,
and is loathe to vacate an award made by an arbitrator.2 In
reviewing the award of a fee arbitration committee, the court
cannot review the panels findings of fact, even if the findings
were in gross error.3 Further, the court cannot review the
decision on its merits.4 The court can only review the decision
based on the reasons set forth in AS 09.43.120 through AS
09.43.180.5 Therefore, in reviewing this appeal, the court will
only vacate the award if it finds the Appellant has proven the
factors under AS 09.43.120(a) and will only modify the award if
the Appellant has proven the factors under AS 09.43.130(a).
DISCUSSION
The Appellant uses his brief to argue the merits of his
criminal case. However, the issue before this court is not
whether the Appellants conviction should stand. That issue is
reserved solely for the Appellants criminal appeal. The court
further cannot reassess the evidence presented before the panel
or the credibility of the witnesses. The court is limited to
finding whether the award made by the arbitrators may be modified
or vacated pursuant to AS 09.43.120 and AS 09.43.130.
The Appellant argues that the panels decision should be
vacated because the Appellee perjured himself at the panel. He
also argues that the evidence he presented against the Appellee
was numerous and of significant weight. He claims that the
panels acceptance of the Appellees testimony over his evidence
shows corruption and partiality on the part of the arbitrators.
However, the fact that the arbitrators weighed the evidence in a
manner unfavorable to the Appellant is not evidence of
corruption. There is no doubt that the Appellant believes his
evidence was more credible than that of the Appellee, but again,
this court is without the authority to reassess the credibility
of the witnesses or the weight of the evidence presented to the
panel. Therefore, the court does not find the fact that the
panel accepted the Appellees testimony as more credible than the
Appellants evidence as an indication of corruption and will not
vacate the award on this point.
The Appellant argues that the fact the panel consisted of
two attorneys and one full-time court employee suggests
partiality among the arbitrators for the Appellee. The court
finds no merit to the Appellants argument. Pursuant to Alaska
Bar Rule 37(c), an arbitration panel consists of two attorneys
and one member of the public. The fact that the panel consisted
of attorneys and a court employee is not evidence of bias.
The Appellant argues that there is clear indication of bias
and corruption among the arbitrators because their decision and
award does not reflect the testimony and evidence the Appellant
presented before the panel. The Appellant contends that he
overwhelmingly proved that the Appellee perjured himself to the
panel and that the panel ignored this evidence and helped the
Appellee in his case. Again, this court does not reassess the
weight of the evidence or review the facts presented to the
panel. The fact that the panel accepted the Appellees version of
events does not indicate bias or corruption among the
arbitrators.
The Appellant further contends that the panel was corrupt
and bias because it stated that the Appellant only identified
three failures of the Appellee when the Appellant argued he
should be excused from paying the fee. The Appellant claims that
he argued numerous other issues to the panel, reiterating that
the Appellee perjured himself numerous times and that the
Appellee intentionally lied to the Appellant during the course of
his representation. Again, the fact that the panel chose to
reject the Appellants arguments is not evidence of bias or
corruption. The panel expressly stated that it could not find
evidence to support the Appellants arguments during the
arbitration. While the court again acknowledges that the
Appellant believes he met this burden, it is without authority to
reassess the panels factual determination and does not find
evident bias among the arbitrators in choosing to exclude some of
the Appellants arguments in its decision.
The Appellant offers other argument regarding evidence of
bias and corruption among the arbitrators, but it is again
repetitive of what has already been stated. Pursuant to AS
09.43.120(a), a court may only vacate the panels award if: (1)
the award was procured by fraud or other undue means; (2) there
was evident partiality by an arbitrator appointed as a neutral or
corruption in any of the arbitrators or misconduct prejudicing
the rights of a party; (3) the arbitrators exceeded their powers;
(4) the arbitrators refused to postpone the hearing upon
sufficient cause being shown for postponement or refused to hear
evidence material to the controversy or otherwise so conducted
the hearing, contrary to the provisions of AS 09.43.050, as to
prejudice substantially the rights of a party; or (5) there was
no arbitration agreement and the issue was not adversely
determined in proceedings under AS 09.43.020 and the party did
not participate in the arbitration hearing without raising the
objection. This court cannot find that the Appellant has met his
burden in proving evident partiality or corruption among the
arbitrators. While the court acknowledges that the Appellant
believes he presented sufficient evidence to support a different
award, this court cannot reassess the facts presented to the
panel. The court can only look to see if there was evident
partiality and corruption among the arbitrators. Upon reviewing
the record, the court is unable to make this determination and
finds that the panel acted within their powers when making the
award. Even if the Appellant presented a magnitude of evidence
to the panel that supported his claim, this would not be enough
for the court to vacate the award. This court is without
authority to vacate an award due to fraud or other undue means
even if the panel made gross errors in their decision.6 The only
argument the Appellant offers repeatedly to prove his contention
of fraud, evident partiality, and corruption among the
arbitrators is that the panel issued a decision in favor of the
Appellee despite of what he claims is overwhelming evidence in
support of his position. This is not evidence of evident
partiality. For the court to find bias among the arbitrators on
this basis would require the court to inquire into the merits of
the panels decision. As stated multiple times, this court is
without authority to do so. Therefore, the court must defer to
the panel and upholds the panels decision to award the Appellee
his fees.
Finally, the Appellant contends that the panel exceeded its
powers by awarding the Appellee funds that he never requested.
He further argues that the arbitration panel awarded the Appellee
a $1,000.00 more than the Appellee was owed. The Appellant
suggests that this also demonstrated corruption on the part of
the arbitrators, as the Appellee had never requested these fees.
The court disagrees that the panel exceeded its power to
make this award. When the Appellant pursued fee arbitration, his
fee agreement with the Appellee became a proper matter for
consideration. The fact that the Appellee had elected not to
pursue the Appellant for the remainder of his undue balance prior
to the Appellants commencement of this action did not constitute
a waiver that would prevent the panel from considering this
issue. At the panel, the arbitrators were presented with the
parties fee agreement. The Appellant did not dispute that he
entered into a fee agreement for $200 per hour with the Appellee.
The Appellant did not dispute the time sheets presented by the
Appellee that demonstrated the time spent by the Appellee working
on the Appellants case. The Appellant only challenged a charge
reflecting air travel to McGrath, and the Appellee agreed that
this was an improper charge. The Appellant acknowledged that he
had not paid the remainder left owing on the parties fee
agreement, which reflected an amount of $2,059.19. The Appellant
only challenged the quality of the Appellees services. The panel
concluded that the Appellee had effectively represented the
Appellant and awarded the Appellee the amount left owing on the
parties fee agreement.
The Appellant made his fee agreement with the Appellee a
proper issue for consideration when he decided to pursue fee
arbitration and cannot argue waiver now. Therefore, pursuant to
AS 09.43.120(a)(3), the court does not find that the panel
exceeded their powers and will not vacate the award. However,
pursuant to AS 09.43.130(a)(1), the court does find that the
award should be modified due to an evident miscalculation on the
part of the arbitrators. The panels decision acknowledges that
the Appellant had paid $11,329.81 to the Appellee for his
services. The panel also acknowledges that the Appellee had
charged the Appellant $13,389.00 for his services. The
difference between these two amounts equal $2,059.19. The panel
further credited the Appellant $370.00 for the Appellees travel
expenses. Therefore, the correct amount that should be awarded
is $1,689.19. However, the court finds that this miscalculation
in the panels award was due to clerical error, and is not
evidence of corruption or bias among the arbitrators.
DATED in Kenai, Alaska, this 15th day of June, 2007.
HAROLD M. BROWN
Superior Court Judge
_______________________________
1 The superior courts decision is appended.
2 AS 09.43.510(a)(2).
3 Alaska Bar Rule 40 implies that only questions
submitted should be decided. In relevant part, Bar Rule 40(q)
states: The decision will be in writing . . . the decision will
include . . . the findings of the arbitrator or panel on all
issues and questions submitted which are necessary to resolve the
dispute. Alaska Bar R. 40(q)(3).
4 Haegs petition for arbitration sought only the fees he
had already paid Cole and stated that Cole did not seek any
further payments from Haeg. Cole confirmed to the arbitration
panel that he was not seeking unpaid fees. At one point in the
proceedings members of the panel told Haeg that the only subject
here is . . . [t]he fee that youve already paid. We note that at
oral argument before this court Cole also waived any interest in
an affirmative recovery.
1 Alaska Bar Rule 34(b).
2 Butler v. Dunlap, 931 P.2d 1036, 1038 (Alaska 1997)
(quoting Depart. Of Pub. Safety v. Public Safety Employees, 732
P.2d 1090, 1093 (Alaska 1987)).
3 Breeze v. Sims, 778 P.2d 215, 217-18 (Alaska 1989).
4 A. Fred Miller v. Purvis, 921 P.2d 610, 618 (Alaska 1996).
5 Alaska Bar Rule 40(a)(2).
6 Alaska State Housing Authority v. Riley Pleas, Inc., 586
P.2d 1244, 1247 (Alaska 1978).
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