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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Moore v. Olson (7/2/2015) sp-7017

Moore v. Olson (7/2/2015) sp-7017

         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, email  


AIMEE L. MOORE,                                          )  

                                                         )    Supreme Court No. S-15281  

                          Appellant,                     )  

                                                         )    Superior Court No. 3AN-13-06990 CI  

         v.                                              )  

                                                         )    O P I N I O N  

DONALD C. OLSON, DONALD                                  )  

OLSON ENTERPRISES, INC., OLSON   )                           No. 7017 - July 2, 2015  

VENTURES, LLC, OLSON AIR                                 )  

SERVICE, INC., REINDEER SPIRIT,                          )  

INC., and POLAR EXPRESS                                  )  

AIRWAYS, INC.,                                           )  


                          Appellees.                     )  


                  Appeal from the Superior Court of the State of Alaska, Third  


                  Judicial District, Anchorage, Andrew Guidi, Judge.  

                  Appearances:        William  F.  Brattain,  Baker  Brattain,  LLC,  


                  Anchorage, for Appellant.  Robert J. Gunther, Law Office of  


                  Robert J. Gunther, Anchorage,  for Appellees.  

                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.  

                  WINFREE, Justice.  


                  In this case we are asked to review a superior court's decision confirming  


an arbitration award.  In the superior court the appellant challenged procedural decisions  


----------------------- Page 2-----------------------

made  by  the  arbitrator;  before  us  the  appellant  challenges  both  procedural  and  


substantive decisions made by the superior court.  Applying the appropriate deferential  


standards of review, we affirm the superior court's decision confirming the arbitration  



          A.       Facts  


                   Donald Olson and Aimee Moore met in 1995.  Between 1995 and 2004  


they had business and personal relationships.   The  business relationship began with  

Donald training Aimee to fly helicopters in exchange for Aimee's work for Donald and  


his businesses.  Eventually Aimee managed Donald's businesses, and they agreed that  


she would receive a share of business profits.  Aimee and Donald dispute the nature of  


their  personal  relationship:    Aimee  characterizes  the  relationship  as  a  cohabative  

domestic partnership; Donald asserts the relationship was not a domestic partnership.1  

                   Aimee terminated the personal relationship in July 2004.  In December  

2004 Aimee and Donald signed an agreement "related to the deferred compensation  

owed Aimee . . . for work performed during the period January 1996 through 2004."  In  


November 2005, after negotiating for more than a year, Aimee and Donald signed a final  


settlement agreement to end their business relationship.  

                   During settlement negotiations and mediation Aimee chose not to have a  


professional participate on her behalf, but she did consult attorneys and accountants.  


Donald agreed to transfer to Aimee $350,000 cash as well as real property valued at  


$150,000.  Donald, on behalf of his businesses, also agreed to transfer to Aimee half of  

          1        We have explained that a personal relationship is a domestic partnership  

when the parties "intended to share in the fruits of their relationship as though married,  


justifying an equal division of their property."   Reed v. Parrish , 286 P.3d 1054, 1057  

(Alaska 2012) (citing Julsen v. Julsen , 741 P.2d 642, 645 (Alaska 1987)).  

                                                            -2-                                                      7017

----------------------- Page 3-----------------------

the net proceeds from the rents and sale of two hangars - for a five-year period - in   

an amount up to $300,000.  Donald agreed to make a good faith effort to market and sell  


the hangars during the five-year period.  In return Aimee agreed to pay half the operating  

expenses of each hangar prior to sale, resign from the businesses, execute a mutual  

release of claims, and maintain confidentiality.  

                    The  settlement  agreement  gave  either  party  the  right  to  arbitrate  any  


disputes and required that the losing party pay "reasonable actual attorney['s] fees."  The  


agreement included a provision that "[t]he decision and award of the arbitrator shall be  

final and binding upon the parties and non-appealable," and further provided:  


                    In the event either party shall be in default in the performance  


                    of any of its obligations under this Agreement and an action  

                    shall be brought for the enforcement thereof, the defaulting  

                    party shall pay to the other all the costs incurred therefor,  

                    including reasonable actual attorney['s] fees.  

                    Donald immediately transferred the cash and the real property to Aimee,  


fulfilling his personal obligation under the settlement agreement.  But Aimee continued  


to have some involvement with the hangars and Donald's businesses, including some  


interactions with Robert Gunther, an attorney who began representing the businesses in  


2007.  The interactions resulted from (1) litigation against a third party and (2) lease  

negotiations with a potential hangar lessee.  


                    The hangars were not sold by November 2010.  But during the five years  

the businesses paid Aimee rents totaling about $285,000, so Aimee had received all but  


about $15,000 of the agreed upon $300,000. During that same period Aimee reimbursed  


the businesses for half of the hangar expenses, including $4,500 for Gunther's legal fees.  


In February 2012, shortly after Aimee initiated arbitration proceedings, the businesses  


paid Aimee the remaining amount due on the agreed upon $300,000 and also returned  

the money Aimee had paid for half of the hangar expenses.  

                                                                -3-                                                         7017

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          B.       Proceedings  

                   Aimee  initiated  arbitration  against  Donald,  but  not  his  businesses,  in  


January 2012.  Aimee asserted:  

                             Pursuant to the property settlement of the parties' long  


                   term  cohabitation  and  partnership,  .  .  .  [Donald]  had  an  

                   obligation to pay [Aimee] approximately $300,000 through  


                   the sale of two specific properties.  

                             [Donald] breached this agreement in some or all of the  


                   following ways:  (1) he failed to promptly sell the properties  

                   and  fund  the  balance  of  the  $300,000  payment;  (2)  he  

                   continued         to    require      [Aimee's]         involvement          in    the  

                   management  of  the  property  by  asking  her  to  meet  and  


                   negotiate with prospective tenants and to deal with tenant  

                   issues;  and  (3)  by  asking  for  additional  contributions  to  


                   maintain and improve the property.  To date, [Donald] has  

                   not attempted to sell the properties despite his promise to do  


                   so.  Because [Donald] committed a breach of the contract, the  


                   contract  should  either  be  rescinded  in  its  entirety  and  the  


                   parties restored to their respective positions status quo ante  

                   or, in the alternative, [Aimee] should receive an amount equal  

                   to the present value of the property at the time of sale or as  


                   otherwise determined as being just and equitable, less interim  


                   payments received by her prior to notice of the breach.  

Charles Kasmar entered an appearance as Donald's attorney, and an arbitration hearing  

was scheduled for December 2012.  

                   In  early  November  2012  Kasmar  emailed  Aimee's  attorney,  William  


Brattain, explaining that "Robert Gunther will be entering an appearance on behalf of  

[Donald's businesses] when they are added as party respondents."  Kasmar, Gunther, and  

Brattain stipulated to the addition of Donald's businesses and Gunther's representation  


of  the  businesses  in  the  arbitration.    They  also  agreed  to  arbitration  scheduling  and  

deadlines, including a December 3 deadline for motions.  Gunther entered his appearance  


in the arbitration on December 3.  

                                                             -4-                                                      7017

----------------------- Page 5-----------------------

                   In mid-January 2013 Aimee moved to continue the arbitration proceedings,  


arguing  that  she  needed  more  time  to  prepare  because  deposition  testimony  had  

complicated  the  scope  of  the  arbitration  and  because  the  hangars  were  not  yet  

professionally appraised.  Aimee also moved to disqualify Gunther, arguing that he had  

a conflict of interest because he had represented Aimee in a substantially related matter  

- the hangar lease negotiations - and arguing that Gunther was a vital witness for the  


arbitration.  Donald and the businesses opposed Aimee's motions.  Gunther submitted  

an affidavit asserting that he had "never entered into an express formal, or an implied,  

agreement to represent Aimee."  

                    The arbitrator denied the motion to continue, concluding that the motion  


was untimely filed without justification. The arbitrator found that Aimee knew from the  


outset of arbitration that appraising the hangars might be necessary.  The arbitrator also  


found  that  "a  continuance  of  the  arbitration  would  delay  the  final  resolution  of  the  

dispute  between  the  parties  and  would  defeat  the  primary  benefit  of  arbitration  of  

expeditiously and inexpensively resolv[ing] the dispute between the parties."  

                    The   arbitrator   also   denied   Aimee's   motion   to   disqualify   Gunther,  


concluding that the motion was untimely filed without justification. The arbitrator noted  


that Aimee knew in November 2012 that Gunther had become involved in the arbitration  


proceedings;  Aimee  did  not  support  her  motion  with  an  affidavit  and  only  filed  an  

affidavit with her reply; the facts did not support finding an attorney-client relationship  


between Aimee and Gunther; and the alleged representation was not in a substantially  


related matter.  The arbitrator finally found that "[t]he timing of the motion to disqualify  

Gunther from these proceedings is suspect."  


                    The parties appeared before the arbitrator in February 2013.  The arbitrator  

ultimately agreed with Donald and his businesses, concluding that the parties' personal  


relationship was not a domestic partnership and finding that Donald and the businesses  

                                                             -5-                                                       7017

----------------------- Page 6-----------------------

had not materially breached the settlement agreement.  The arbitrator ruled in Donald's  


and  the  businesses'  favor  and  awarded  them  reasonable  prevailing  party  costs  and  


attorney's fees.  


                    Donald  and  the  businesses  applied  in  superior  court  to  confirm  the  


arbitration  award.    Aimee  sought  to  vacate  the  award,  arguing  that:    (1)  "[b]y  not  


recusing Mr. Gunther, the Arbitrator substantially prejudiced [Aimee's] rights, and thus  

under A.S. 09.43.500, the Arbitration must be vacated"; and (2) "[the] refusal by the  


Arbitrator to continue the hearing . . . constituted a substantial prejudice of [Aimee's]  


rights, and thus under A.S. 09.43.500, this court should vacate, rather than confirm, the  


decision of the Arbitrator."  Aimee also moved to disqualify Gunther from the superior  


court proceedings.  The court denied Aimee's motion to disqualify  Gunther, denied  

Aimee's vacatur request, and confirmed the arbitration award.  The court also granted  

Donald's  and  the  businesses'  motions  for  full  reasonable  costs  and  attorney's  fees,  

finding that the settlement agreement mandated such an award, Alaska Civil Rule 82  


supported a full reasonable fee award, and that Donald's and the businesses' actual costs  

and fees were reasonable.  

                    Aimee appeals, arguing that the superior court erred and violated her right  


to due process by denying her disqualification motion, confirming the arbitration award,  

and awarding attorney's fees, all without holding a hearing.  


                    "A superior court's decision reviewing an arbitration award is subject to de  


                         A "decision concerning a motion to disqualify opposing counsel will  

novo review."                                                  

          2         Johnson v. Aleut Corp. , 307 P.3d 942, 947 (Alaska 2013) (citing                                   Kinn v.  

Alaska Sales & Serv., Inc. , 144 P.3d 474, 482 (Alaska 2006)).  Accord McAlpine v.  

Priddle , 321 P.3d 345, 348 (Alaska 2014) ("We 'review de novo the superior court's  



                                                               -6-                                                         7017

----------------------- Page 7-----------------------



only be reversed when it constitutes an abuse of discretion."   A ruling that an underlying  


agreement required an award of actual reasonable attorney's fees is "reviewed under the  

de novo standard because it involves contract interpretation."4  "Questions of due process  

present constitutional issues that we review de novo."5  



                     An "arbitrator's findings of both fact and law . . . receive great deference." 

Generally "the arbitrator's findings of fact are unreviewable, even in the case of gross  



error,"   and  "judicial  review  .  .  .  of  an  arbitrator's  decision  is  limited  to  issues  of  



arbitrability."     "[I]n  order  to  vacate  [an]  award  based  on  the  arbitrators'  refusal  to  

continue the arbitration hearing, a litigant must show that the 'arbitrators committed  

gross   error'   in   determining   that   a   'litigant   did   not   show   sufficient   cause   for  

           2         (...continued)  

decision to confirm [an] arbitration award.' " (alteration in original) (quoting State v.  


Pub. Safety Emps. Ass'n , 235 P.3d 197, 201 (Alaska 2010))).  

           3         Munn v. Bristol Bay Hous. Auth. , 777 P.2d 188, 196 (Alaska 1989).  Accord  

In re Estate of Adkins , 874 P.2d 271, 272-73 (Alaska 1994) ("We review questions of  


attorney disqualification under the abuse of discretion standard.").  



                     Marathon Oil Co. v. ARCO Alaska, Inc. , 972 P.2d 595, 600 (Alaska 1999)  

(citing State v. Arbuckle, 941 P.2d 181, 184 (Alaska 1997)).  



                     Grimmett  v.  Univ.  of  Alaska,  303  P.3d  482,  487  (Alaska  2013)  (citing  

James v. State, Dep't of Corr. , 260 P.3d 1046, 1050 (Alaska 2011)).  



                     OK Lumber Co. v. Alaska R.R. Corp., 123 P.3d 1076, 1078 (Alaska 2005)  


(alteration in original) (quoting Ahtna, Inc. v. Ebasco Constructors, Inc. , 894 P.2d 657,  

660 (Alaska 1995)).  

           7         Ahtna, Inc. , 894 P.2d at 661 (citing Breeze v. Sims , 778 P.2d 215, 217  

(Alaska 1989)); accord McAlpine, 321 P.3d at 349.  



                     Ahtna, Inc. , 894 P.2d at 661 (quoting Masden v. Univ. of Alaska , 633 P.2d  

 1374, 1377 (Alaska 1981)).  

                                                                  -7-                                                           7017

----------------------- Page 8-----------------------



postponement.' "   We also have applied the gross error standard of review to other  

issues concerning arbitration management.10  



          A.	      The Superior Court Did Not Abuse Its Discretion When It Refused To  

                   Disqualify         Gunther         From        The       Confirmation            And       Vacatur  


                   During the superior court confirmation and vacatur proceedings Aimee  

          9        Marathon Oil Co. , 972 P.2d at 602 (quoting Ebasco Constructors, Inc. v.  

Ahtna, Inc. , 932 P.2d 1312, 1316 (Alaska 1997)).  

          10       See   id.   ("Because   AS   09.43.120(a)(4)   deals   generally   with   issues  

concerning the management of arbitration, it is logical to adopt the same standard of  

review for all alleged violations of this provision.").  We recognize that our decision in  

Marathon Oil addressed Alaska's Uniform Arbitration Act (UAA), and that Aimee and  


Donald's agreement is subject to Alaska's Revised Uniform Arbitration Act (RUAA).  


Ch. 170,  1-2, SLA 2004 (Alaska adopted the RUAA in 2004, and the RUAA governs  


arbitration agreements entered into on or after January 1, 2005.); AS 09.43.300-.595.  

Donald argues that "[t]he RUAA includes few substantive changes from the original  

UAA provisions regarding confirmation and vacatur," and he suggests "that case law  


decided under the UAA is equally applicable to the RUAA; or, at the very least, provides  


highly persuasive guidance."  

                   Donald's arguments are persuasive.  For example, the RUAA and UAA  

each mandate vacatur when a party's continuance request was denied despite a "showing  


of sufficient cause for postponement."  See AS 09.43.500(a)(3) (mandating vacatur when  

"an  arbitrator  refused  to  postpone  the  hearing  on  showing  of  sufficient  cause  for  

postponement, refused to consider evidence material to the controversy, or otherwise  


conducted the hearing contrary to AS 09.43.420, so as to prejudice substantially the  


rights of a party to the arbitration proceeding"); AS 09.43.120(a)(4) (mandating vacatur  


when "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").  Because the RUAA did not change or limit the  


policies  in  favor  of  arbitration,  we  apply  the  same  deferential  review  of  arbitration  

decisions  that  we  applied  under  the  UAA.    We  thus  continue  to  review  arbitration  

management decisions for gross error.     

                                                           -8-	                                                    7017

----------------------- Page 9-----------------------

unsuccessfully moved to disqualify Gunther, asserting a conflict of interest and arguing  


that she was Gunther's former client in a substantially related matter.  Aimee now argues  

that the court erred when it refused to disqualify Gunther.  

                   We have held that  


                   an attorney "may not represent a third party against a former  

                   client   where   there   exists   a   substantial   possibility   that  


                   knowledge   gained   by   him   in   the   earlier   professional  

                   relationship can be used against the former client, or where  

                   the subject matter of his present undertaking has a substantial  



                   relationship to that of the prior representation."  



This test is incorporated in Alaska Professional Conduct Rule 1.9(a)                                  which provides:  

                   A lawyer who has formerly represented a client in a matter  

                   shall not thereafter represent another person in the same or a  

                   substantially related matter in which that person's interests  

                   are  materially  adverse  to  the  interests  of  the  former  client  

                   unless the former client gives informed consent, confirmed in  



Disqualification therefore is warranted after determining that (1) the party alleging a  

conflict of interest is the attorney's former client and (2) the attorney represented the  


former client in a substantially related matter.   

                   Rule 9.1(q) defines "substantially related matters" as "matters:  (1) that  

involve the same transaction or the same underlying legal dispute, or (2) where there is  


a substantial risk that confidential factual information obtained in the prior matter would  


materially advance a client's position in the subsequent matter." We have explained that  


"[t]he substantial relationship test for determining disqualification of an attorney is a  

prophylactic  rule  which  obviates  the  need  for  the  former  client  to  demonstrate  that  

          11       Griffith v. Taylor, 937 P.2d 297, 301 (Alaska 1997) (quoting Aleut Corp.  

v. McGarvey , 573 P.2d 473, 474-75 (Alaska 1978)).  

          12       See id. at 301 n.8.  

                                                             -9-                                                      7017

----------------------- Page 10-----------------------

confidential         information         was     actually       disclosed        in   the     course       of    the    prior  


representation."            But the former client still has the burden to demonstrate "that the  

matters  embraced  within  the  pending  suit  wherein  [her]  former  attorney  appears  on  

behalf  of  [her]  adversary  are  substantially  related  to  the  matters  or  cause  of  action  


wherein the attorney previously represented [her], the former client."                                            

                    We do not decide whether Aimee is Gunther's former client because Aimee  


fails  to  establish  that  the  superior  court  erred  when  concluding  that  there  was  no  


substantial relationship between Gunther's alleged representation and the confirmation  

and vacatur proceedings.  Aimee argues that "Gunther was [her] lawyer in regard to  


selling the two airport properties, and subsequently purported to represent [Donald] in  


a  case  in  which  [Aimee]  was  attempting  to  assert  an  interest  in  those  same  airport  

properties."    In  the  superior  court  Aimee  asserted  that  she  came  to  Gunther  "for  


assistance in making key decisions in the leasing, pollution and environmental concerns,  


and management of the Barrow hangar property."  Aimee supported her statement with  

an affidavit asserting:  


                    I met several times with Mr. Gunther during the five year  


                    period of the Settlement Agreement, with [Donald], to obtain  


                    legal assistance and advice on issues relating to the airport  


                    properties.  At the time, and to this day, I believed that I was  

                    consulting with Mr. Gunther as a lawyer in his professional  

                    capacity.    At  the  time  I  participated  proactively  in  the  


                    meetings, and manifested my intention to seek professional  


                    legal advice from Mr. Gunther.  At the time I consulted with  

                    Mr. Gunther I had a legal and equitable interest in the airport  

                    properties, and considered him to be my attorney vis-á-vis  

                    those properties.  

          13        Id. at 301.  

          14       Aleut Corp. , 573 P.2d at 475 (quoting T.C. Theatre Corp. v. Warner Bros.  

Pictures , 113 F. Supp. 265, 268 (S.D.N.Y. 1953)) (internal quotation marks omitted).  

                                                             -10-                                                       7017

----------------------- Page 11-----------------------

                   But Aimee fails to demonstrate how her alleged attorney-client relationship  


with  Gunther, and  the  matters  allegedly  discussed, were  substantially  related  to  the  


superior court confirmation and vacatur proceedings.  She does not argue, nor does it  


appear from the record, that her alleged participation in the hangar lease negotiations was  


related in any way to the legal dispute raised in her allegations that Donald and the  


businesses breached the settlement agreement.  And Aimee's superior court claims were  

even further removed from her alleged interaction with Gunther - her superior court  

arguments  were  based  on  the  arbitrator's  procedural  decisions,  not  on  the  leasing,  

management, or even sale of the airport properties.  

                   Finally, Aimee fails to establish that there was any "substantial risk that  


confidential factual information obtained in the prior matter would materially advance  

                                                                 15  Aimee asserts that the subject matter of  


a client's position in the subsequent matter."  

her  meetings  with  Gunther  and  the  subject  matter  of  the  arbitration  dispute  were  

identical, i.e., "what needed to be done with two airport properties in which both parties  


had an interest."  Aimee does not need to establish that Gunther received confidential  

                  16 but she must establish a substantial risk that he did. Aimee fails to explain  


why her involvement and interaction with Gunther during lease negotiations with an  

outside party created a substantial risk that she had revealed confidential information  


relevant to her subsequent application for the superior court to vacate the arbitrator's  


decision  based  on  alleged  procedural  errors.    And  Aimee  did  not  establish  that  her  


interactions with Gunther - dealing with unrelated litigation and lease negotiations -  


were related to her domestic partnership or breach of contract theories.  Because Aimee  

failed to satisfy her burden of explaining or establishing a substantial risk that Gunther  

          15       Alaska R. Prof. Conduct 9.1(q)(2).  

          16       See Griffith, 937 P.2d at 301.  

                                                            -11-                                                          7017  

----------------------- Page 12-----------------------


received confidential information, the superior court did not abuse its discretion when  

denying her disqualification request.  

           B.	       The Arbitrator's Denial Of Aimee's Disqualification Request Was Not  

                     Gross Error.  

                     Aimee asserts that the arbitrator committed gross error when concluding  


that  Aimee  and  Gunther  did  not  have  an  attorney-client  relationship  and  when  


concluding that Aimee did not consult Gunther on a substantially related matter.  A  

preliminary  issue  not  explicitly  raised  by  the  parties  is  the  arbitrator's  authority  to  

determine whether Gunther had a conflict of interest.17  


                     Courts that have addressed this issue are split.  Some courts have held that  

attorney  disqualification  issues  are  outside  arbitrators'  jurisdiction,  concluding  that  



public policy dictates reserving such decisions for courts.                                  And it may be inappropriate  

           17        In her opening brief Aimee asserts that the arbitration award should be   

vacated  under  AS  09.43.500(4).    AS  09.43.500(4)  provides  for  vacatur  when  "an  

arbitrator exceeded the arbitrator's powers."  But Aimee never develops this argument  


and never explicitly argues that an arbitrator is not authorized to determine whether a  

lawyer has a conflict of interest.   And because Aimee is the party who brought the  


disqualification issue to the arbitrator; never disputed the arbitrator's authority to make  

this decision; never sought a stay of the proceedings to bring the issue before a superior  


court; and has not raised the issue to us, we do nothing more than identify the issue for  


future cases.  



                     See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Benjamin , 766  


N.Y.S.2d 1, 6 (N.Y. App. Div. 2003) ("Another matter 'intertwined with overriding  

public policy considerations' and therefore beyond the reach of the arbitrators' discretion  

is the disqualification of an attorney from representing a client. . . .  [I]ssues of attorney  


disqualification  involve  interpretation  and  application  of  the  Code  of  Professional  

Responsibility  and  Disciplinary  Rules  and  cannot  be  left  to  the  determination  of  


arbitrators selected by the parties themselves for expertise in the particular industries in  


which they are engaged." (quoting  Bidermann Indus. Licensing v. Avmar  N.V., 570  


N.Y.S.2d  33,  34  (N.Y.  App.  Div.  1991)));  Dean  Witter  Reynolds,  Inc.  v.  Clements,  



                                                                 -12-	                                                           7017

----------------------- Page 13-----------------------


for   arbitrators   to   address   disqualification   issues   because   they   arguably   present  


substantive disputes between one party to the arbitration and their alleged former counsel  


                                                                                     Other courts, noting that "[t]he  

- a party who has not agreed to arbitrate the dispute. 


law provides an opportunity for judicial review of arbitration decisions," have narrowly  


construed  the  public  policy  exception,                         concluding  that  attorney  disqualification  


decisions are procedural decisions for arbitrators to make consistent with the policy of  


encouraging arbitration as a speedy alternative to litigation.                                  


                    Donald and Aimee's settlement agreement provided:  "In the event of any  


dispute, claim or question arising under this Agreement, or related hereto, . . . .  [T]hen  

either  party  shall  have  the  right  to  submit  the  matter  to  the  American  Arbitration  


Association . . . for arbitration under its Commercial Arbitration Rules . . . ."  We have  

          18        (...continued)  

O'Neill, Pierce & Nickens, L.L.P., No. H-99-1882, 2000 WL 36098499, at *5 (S.D. Tex.  


Sept. 8, 2000) ("[O]verarching policy considerations preclude arbitrators, who are often  


non-lawyers, from interpreting and applying the applicable rules of professional conduct  


for attorneys.").  



                    Dean  Witter  Reynolds,  Inc. ,  2000  WL  36098499,  at  *4  ("[Appellee]  


characterizes the disqualification dispute as nothing more than a matter of [one party's]  

choice  of  counsel  in  the  underlying  .  .  .  arbitration.    However,  at  its  core,  the  

disqualification dispute lies between [the alleged client] and [the lawyer], not between  


[the parties to the arbitration].").  

          20        SOC-SMG, Inc. v. Day & Zimmermann, Inc., No. 5375-VCS, 2010 WL  

3634204, at *3 (Del. Ch. Sept. 15, 2010).  

          21        See, e.g., id. ("Just as a trial judge should deal in the first instance with  


alleged  discovery  abuses  or  attorney  misconduct  in  cases  before  her,  so  should  an  


arbitration panel."); Canaan Venture Partners, L.P. v. Salzman, No. CV 950144056S,  


1996 WL 62658, at *3 (Conn. Super. Jan. 28, 1996) ("This court will not interfere with  


and interrupt the process of arbitration . . . .  Furthermore, the public policy exception is  

to be construed narrowly, and . . . attorney disqualification is not within the scope of the  


                                                               -13-                                                         7017

----------------------- Page 14-----------------------

emphasized a "strong [public] policy favoring arbitration and our rule of construction  

                                                                                                                      22  But  

allowing even ambiguous contract terms to be construed in favor of arbitrability." 

because neither party has ever explicitly argued that the attorney disqualification issue  


was not subject to arbitration - thereby tacitly accepting the arbitrator's jurisdiction to  

address the issue - we do not need to decide in this case whether disqualification is an  

arbitrable issue.  

                    The arbitrator did not grossly err when denying the disqualification motion.  


The arbitrator found that Aimee's motion was filed well after the deadline for motions  


and that Aimee failed to adequately justify her late-filed motion when she knew two  


months  earlier that Gunther would participate in the arbitration.  The arbitrator also  


found the timing of Aimee's disqualification motion "suspect."  On appeal Aimee fails  


to argue that either finding was obvious and significant error.   Under our deferential  


standard of review, these findings alone are sufficient to affirm the arbitrator's decision  

denying the disqualification motion.  


                    Aimee argues that the arbitrator grossly erred when finding no substantial  

relationship between Gunther and Aimee's prior interactions and the issues addressed  


in the arbitration.  The arbitrator found that Aimee and Gunther "in fact met regarding  

the airport properties."  But the arbitrator distinguished (1) Aimee providing "a factual  


basis affidavit dealing with issues involved in [a different] litigation," and (2) discussing  


a potential lease of one of the hangar properties, from Aimee and Donald's settlement  

agreement and Aimee's ownership claims.  The arbitrator noted that Aimee:  

                    does   not   specifically   mention   nor   does   she   state   any  


                    discussion she might have had with Gunther that dealt with  

          22       Lexington Mktg. Grp., Inc. v. Goldbelt Eagle, LLC                             , 157 P.3d 470, 478  

(Alaska 2007) (citing  Univ. of Alaska v. Modern Constr., Inc., 522 P.2d 1132, 1138  

(Alaska 1974)).  

                                                             -14-                                                       7017

----------------------- Page 15-----------------------

                    any of the issues involved in the Arbitration proceeding.  A  

                    careful reading of the affidavits presented makes it clear that  

                    [Aimee's] contact with Gunther . . . did not involve any of the  


                   issues dealing with the current dispute between the parties in  


                   the Arbitration proceeding.  

                   Aimee correctly asserts that under Alaska law she is not required to show  


that confidential information was disclosed in order to disqualify Gunther.23  

                                                                                                                   But the  


arbitrator did not mandate a showing of a confidential disclosure.  Rather, the arbitrator  


noted that Aimee failed to establish that her prior interactions with Gunther addressed  

any  of  the  disputed  issues  in  the  arbitration.    Aimee's  briefs  in  this  appeal  and  her  


citations to the record similarly fail to establish that Aimee's discussions with Gunther  

involved any of the same issues - i.e., the alleged domestic partnership and alleged  

breach of the settlement agreement - that the parties disputed in the arbitration.  

                   Because Aimee does not dispute the arbitrator's finding that her motion was  

untimely filed without justification,  and because the arbitrator reasonably concluded that  

Gunther  never  consulted  with  Aimee  regarding  a  substantially  related  matter,  we  

conclude that the arbitrator did not grossly err when denying Aimee's disqualification  


motion. We therefore conclude that the superior court correctly ruled that the denial was  

insufficient grounds for vacatur.  


          C.	       The Arbitrator's Denial Of Aimee's Continuance Request Was Not  

                    Gross Error.  

                   Alaska Statute 09.43.500(a)(3) requires vacatur of an arbitration award  


when "an arbitrator refused to postpone the hearing on showing of sufficient cause for  


postponement, refused to consider evidence material to the controversy, or otherwise  


conducted the hearing contrary to AS 09.43.420, so as to prejudice substantially the  


rights  of  a  party  to  the  arbitration  proceeding."    We  have  explained  that  "the  party  

          23       See supra, page 11.  

                                                            -15-	                                                         7017  

----------------------- Page 16-----------------------

challenging [an arbitration] award bears the burden of proof,"24  and we have noted that  


"[c]ourts have rejected most claims that an arbitration proceeding should be vacated  

because of an arbitrator's refusal to postpone the hearing."25  

                   Aimee argues that the inclusion of Donald's businesses in the arbitration  

complicated the proceedings.  Aimee asserts she showed good cause for postponement  


because she needed time to put together a case establishing her domestic partnership  


theory or to show that she was owed much more deferred compensation than she had  


received.  Aimee also argues that the need to appraise the airport properties was good  


cause for the continuance because (1) "[t]he gravamen of [Aimee's] claim [was] that the  

airport hangar properties were never properly valued at the time of the negotiations  


leading to the Settlement Agreement" and (2) the properties' value was necessary for the  

arbitrator's  determination  "whether  the  Settlement  Agreement  was  breached,  was  


rescinded, expired, or was never fully integrated in the first place, and what remedy  

would be most fair and equitable to the parties."  


                   When denying Aimee's motion to continue, the arbitrator noted that the  

arbitration  had  been  continued  twice  before:    first,  upon  the  parties'  stipulation  the  


arbitration had been continued from early December 2012 until late January 2013, and  

second,  a  week  after  Aimee  first  moved  to  continue,  before  the  arbitrator  issued  a  


decision on the continuance motion, the arbitration was continued for two weeks due to  


Aimee's counsel's illness.  The arbitrator's order denying the continuance also noted that  

the  gravamen  of  Aimee's  original  claim  was  an  alleged  breach  of  the  settlement  

agreement,  that  Aimee  sought  "half  of  the  .  .  .  fair  market  value  of  the  two  airport  

          24       City of Fairbanks Mun. Utils. Sys. v. Lees,   705   P.2d 457, 461 (Alaska  


          25       Ebasco Constructors, Inc. v. Ahtna, Inc., 932 P.2d 1312, 1316 n.1 (Alaska  


                                                            -16-                                                         7017  

----------------------- Page 17-----------------------


properties," and that Aimee's arbitration notice recognized that "[q]uantification of the  

[fair market value] is complex, and likely to be controversial."  


                    The  arbitrator  found  that  Aimee's  motion  to  continue  was "clearly  


untimely"  and  that  Aimee  failed  to  advance  a  "just  reason"  for  the  late  motion.  

Explaining          that     arbitration        helps      "resolve       disputes        privately,        promptly,         and  


economically," the arbitrator found that "it is clear that [Aimee] knew from the beginning  


of this arbitration process that the fair market value of the property was an issue that she  


had raised by her pleadings" and that "a continuance of the arbitration would delay the  


final resolution of the dispute between the parties and would defeat the primary benefit  

of arbitration."  

                    The   arbitrator's   denial   did   not   address   Aimee's   assertions   that   a  

continuance  was  warranted  because  addition  of  the  businesses  complicated  the  


arbitration  and  because  she  needed  more  time  to  gather  evidence  of  a  domestic  


partnership.  But none of Aimee's assertions establish that the arbitrator's denial of her  


continuance request was obvious and significant error.  First, the businesses obviously  


were necessary parties to the arbitration, and Aimee expressly consented to their addition  


and the new arbitration date.  Second, in his ultimate decision the arbitrator relied on  

evidence in the record reflecting the parties' views on whether Aimee was due any  


additional  deferred  compensation.    Third,  when  Aimee  submitted  the  dispute  to  


arbitration asserting a breach of contract, she did not explain that she planned to argue  

for a remedy under her domestic partnership theory.  


                    Because  the  arbitrator  soundly  justified  denying  Aimee's  continuance  

request,  we  conclude  that  the  superior  court  correctly  ruled  that  the  denial  was  

insufficient grounds for vacatur.  

                                                              -17-                                                         7017

----------------------- Page 18-----------------------


          D.	       The Superior Court Was Not Required To Sua Sponte Conduct An  

                    Evidentiary Hearing.  


                    Aimee did not request an evidentiary hearing during the confirmation and  


vacatur proceedings.  But she now asserts that the superior court's failure to sua sponte  

conduct an evidentiary hearing was erroneous.  

                    1.	      No statute requires a sua sponte evidentiary hearing.  

                    Describing   the   superior   court's   role   in   confirmation   and   vacatur  


proceedings as that of "an intermediate appellate body," Aimee argues that the statute  

providing  the  superior  court's  appellate  jurisdiction,  AS  22.10.020(d),  includes  the  

requirement to conduct "hearings on appeal."  Aimee then notes that she and Donald  


contested  facts  that  were  relevant  for  the  superior  court's  confirmation  and  vacatur  

decisions.  Thus, Aimee concludes that the superior court failed to hold "a hearing to see  


whether in fact criteria from AS 09.43.500 justified vacation . . . . [A]nd its failure to  

conduct any hearing whatsoever before simply confirming the award derogated its duty  

to properly review the arbitration's compliance with AS 09.43.500."  


                    Aimee  incorrectly  classifies  the  superior  court's  action  in  this  case  as  


intermediate  appellate  review.                 Alaska  Statue  22.10.020(d)  establishes  the  superior  

court's  appellate  jurisdiction  over  matters  appealed  from  subordinate  courts  and  



administrative agencies.               But the superior court does not exercise appellate jurisdiction  

over arbitration disputes; rather, the court exercises original jurisdiction over applications  

          26        See AS 22.10.020(d) ("The superior court has jurisdiction in all matters  

appealed  to  it  from  a  subordinate  court,  or  administrative  agency  when  appeal  is  

provided by law, and has jurisdiction over petitions for relief in administrative matters  


under  AS  44.62.305.    The  hearings  on  appeal  from  a  final  order  or  judgment  of  a  

subordinate court or administrative agency, except an appeal under AS 43.05.242, shall  


be on the record unless the superior court, in its discretion, grants a trial de novo, in  


whole  or  in  part.    The  hearings  on  appeal  from  a  final  order  or  judgment  under  


AS 43.05.242 shall be on the record.").      

                                                             -18-	                                                      7017

----------------------- Page 19-----------------------



 to confirm or vacate arbitration awards.                      And the RUAA does not include an explicit  


 requirement that courts conduct a  hearing when addressing applications to confirm,  


                                                             We conclude that the superior court had no  

 modify, or vacate arbitration  awards. 

 statutory obligation to sua sponte conduct an evidentiary hearing.  This conclusion is  

 consistent with our precedent:  "In order to preserve the finality of arbitration awards,  

 the  superior  court's  function  in  confirming  or  vacating  an  arbitration  award  must  


 necessarily be limited."              

          27        See  Leisnoi, Inc. v. Merdes & Merdes, P.C.                      , 307 P.3d 879, 892 (Alaska  

 2013)  ("The  superior  court  is  the  trial  court  of  general  jurisdiction,  with  original  

jurisdiction  over civil matters. . . .  Unquestionably, the superior  court initially had  

 subject  matter  jurisdiction  to  determine  whether  the  arbitration  award  was  valid.  

 (footnote omitted) (emphasis added)); AS 22.10.020(a).  


                    In asserting that superior court confirmation and vacatur proceedings must  


 include  evidentiary  hearings  because  the  court  must  resolve  factual  disputes  while  

 conducting intermediate appellate review, Aimee exhibits confusion about the difference  

 between  oral  argument  and  an  evidentiary  hearing.    We  have  explained  that  oral  

 argument addresses legal propositions while evidentiary hearings address relevant factual  

 disputes.  See Stinson v. Holder, 996 P.2d 1238, 1242 (Alaska 2000) ("[I]t was necessary  


 to conduct an evidentiary hearing to allow testimony about Stinson's mental state and  


 to find facts about his competence at relevant times.  The superior court had discretion  


 to decide whether to hear oral argument on Stinson's motion, and it could well have  

 decided that oral argument on the legal propositions presented was not necessary.  But  


 it was an abuse of discretion to deny the motion without hearing and determining the  


 relevant facts." (footnote omitted)).  Parties to an appeal may request oral argument.  

 Alaska R. App. P. 605.5(b).  But Aimee appears to argue for both oral argument and an  


 evidentiary  hearing,  i.e.,  without  providing  a  basis  in  law,  she  argues  that  because  

 superior court confirmation and vacatur proceedings are intermediate appellate review  


 and because she alleges factual disputes, she is entitled to an evidentiary hearing.  

          28        See AS 09.43.470, .490, .500, .510.  

          29        Lees , 705 P.2d at 460.  

                                                             -19-                                                       7017

----------------------- Page 20-----------------------

                       2.	         The superior court did not violate Aimee's right to due process  


                                   when confirming the arbitration award without an evidentiary  


                       Aimee  asserts  that  her  right  to  due  process  was  violated  because  the  

superior  court  proceedings  "involve[d]  substantial  property  interests,  and  [Alaska  


precedent] mandates that [Aimee] was entitled to a hearing to present her case."  But  


when a party fails to request an evidentiary hearing we will review a court's failure to  


                                                                                                               "Plain error exists if 'an  

sua sponte conduct an evidentiary hearing only for plain error. 

obvious  mistake  has  been  made  which  creates  a  high  likelihood  that  injustice  has  


resulted.' "            And even if Aimee had the right to an evidentiary hearing, which we do  


not  suggest,  procedural  due  process  does  not  guarantee  that  a  party  will  receive  an  

evidentiary hearing on all material fact disputes because "[a] party may waive the right  


to an evidentiary hearing on disputed material questions of fact by failing to request one  

            30         See In re Estate of Fields, 219 P.3d 995, 1011 (Alaska 2009) ("We will   

consider an issue not raised below or in a statement of points on appeal if it reflects plain     

error, which exists if 'an obvious mistake has been made which creates a high likelihood       

that injustice has resulted.'  We cannot conclude that the failure to sua sponte order an   

unrequested discretionary evidentiary hearing on the Alaska Civil Rule 60(b) motion was  

an  obvious  mistake  that  created  a  high  likelihood  of  injustice."  (footnote  omitted)  

(quoting Miller v. Sears , 636 P.2d 1183, 1189 (Alaska 1981))); Owen M. v. State, Office  


of  Children's  Servs.,  120  P.3d  201,  203  (Alaska  2005)  ("We  review  [appellant's]  

argument for plain error because he did not ask the superior court for an evidentiary  

hearing  on  [his  child's]  placement.  .  .  .                           [Appellant]  cannot  show  plain  error.    The  


superior court did not make an obvious mistake in not holding an evidentiary hearing  

because neither the statute nor the [Child in Need of Aid R]ule explicitly requires one."  


(footnotes omitted)).  

            31         Johnson v. Johnson , 239 P.3d 393, 407 (Alaska 2010) (quoting Estate of  

Fields , 219 P.3d at 1011).  

                                                                        -20-	                                                                 7017

----------------------- Page 21-----------------------

before the court rules on the matter."32  


                    During the confirmation and vacatur proceedings Aimee challenged only  


two procedural decisions by the arbitrator.  These were discretionary decisions subject  


to review only for gross error. As discussed above, the arbitrator explained his decisions  


and they were supported by the arbitration record. Because the superior court's decision  

to confirm the arbitration award based on the parties' applications and the arbitration  


record  was  not  an  obvious  mistake  that  created  a  high  likelihood  of  injustice,  we  

conclude that Aimee's right to due process was not violated.    


          E.	       The Superior Court Did Not Abuse Its Discretion Or Err As A Matter  

                    Of Law When Awarding Full Reasonable Attorney's Fees.  

                    The  superior  court  awarded  Donald  and  his  businesses  full  reasonable  


attorney's fees for the confirmation proceedings.  The court explained that the "award  

of  actual  reasonable  attorney['s]  fees  and  cost[s]  in  this  case  is  mandated  by  the  


November  2005  Settlement  Agreement.    Even  if  the  Settlement  Agreement  did  not  

mandate an award of such costs and fees, they are independently appropriate pursuant  


to Civil Rule 82(b)(3) and the policy favoring arbitration."  The  court supported its  

independent  Rule 82 conclusion with findings that "[Aimee's] case was largely frivolous  


and devoid of merit.  [Aimee] showed a remarkable use of untrue and misleading facts.  


[Aimee]  engaged  in  an  unfounded  campaign  to  damage  the  personal  and  business  

reputations of [Donald] and [his businesses]."  


                    Focusing on the superior court's findings, Aimee argues that awarding the  

fees without an evidentiary hearing violated her right to due process and that the fee  

award was unreasonable.  But Aimee ignores the superior court's first basis for the  


attorney's  fees  award:    The  court  concluded  that  the  award  "is  mandated  by  the  



                    DeNardo v. Maassen , 200 P.3d 305, 315 (Alaska 2009) (citing Corbin v.  

Corbin, 68 P.3d 1269, 1274 (Alaska 2003)).  

                                                             -21-	                                                          7017  

----------------------- Page 22-----------------------

November 2005 Settlement Agreement."  Rule 82(a) provides: "Except as otherwise  


provided by law or agreed to by the parties, the prevailing party in a civil case shall be  

awarded attorney's fees calculated under this rule."  (Emphasis added.)  

                    The settlement agreement provided for a full reasonable attorney's fees  


award made to the prevailing party in arbitration and explained that "[t]he decision and  


award of the arbitrator shall be final and binding upon the parties and non-appealable."  


The settlement agreement also included the following provision:  "In the event that either  


party shall without fault on its part be made a party to any litigation commenced by or  


against the other, then such party shall pay all costs and reasonable actual attorneys fees  

incurred or paid by such party in connection with such litigation."  In her briefing Aimee  


does not dispute the superior court's conclusion that the settlement agreement mandates  


a full reasonable attorney's fees award.  Therefore we do not need to consider Aimee's  

arguments under Rule 82.  


                    Aimee does argue that the attorney's fees award was unreasonable.  When  

determining whether attorney's fees are reasonable courts "often focus[] on two factors:  


                                                                                                                 But  Aimee's  

(1)  the  hourly  rate  charged  and  (2)  the  number  of  hours  reported." 


argument focuses on neither of these factors. Rather than asserting that Donald's and the  


businesses' lawyers spent an unreasonable amount of time or billed an unreasonable  


amount  per  hour,  Aimee  focuses  only  on  whether  it  was  reasonable  to  award  full  


attorney's  fees  at  all.    "[T]he  trial  court  is  in  the  best  position  to  determine  


reasonableness as 'it has knowledge of the case that the reviewing court lacks' and '[t]he  


trial  court's  greater  knowledge  of  the  case  makes  it  uniquely  suited  to  [determine  

          33         Okagawa v. Yaple, 234 P.3d 1278, 1281-82 (Alaska 2010).  

                                                               -22-                                                             7017  

----------------------- Page 23-----------------------


reasonable actual attorney's fees] quickly, accurately, and fairly.' "    We conclude that  

the amount awarded was not an abuse of discretion.  


                   Aimee finally argues that the superior court, when awarding attorney's fees  


without  holding  oral  argument  or  an  evidentiary  hearing,  violated  her  right  to  due  

process.    But  Aimee  never  requested  any  kind  of  in  person  hearing  on  the  issue  of  


attorney's fees, and she cannot dispute that she had the opportunity to be heard during  

the motion practice by submitting her opposition to the requests for attorney's fees.  


                   Because the superior court properly awarded attorney's fees based on the  

settlement  agreement  and  because  Aimee  never  requested,  nor  was  she  necessarily  


entitled to, an evidentiary hearing or oral argument on the reasonableness of the fees, we  

conclude that the superior court did not err in its attorney's fees award.  

V.        CONCLUSION  


                   We  AFFIRM  the  superior  court's  decisions  confirming  the  arbitration  

award and awarding Donald and the businesses their actual reasonable attorney's fees  

for the confirmation proceeding.  



                   Id. at 1282 (second two alterations in original) (quoting  Valdez Fisheries  

Dev. Ass'n v. Froines , 217 P.3d 830, 833 (Alaska 2009)).  

                                                            -23-                                                          7017  

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