Cummings v. Budget Tank Removal & Environmental Services, LLC

260 P.3d 220, 163 Wash. App. 379
CourtCourt of Appeals of Washington
DecidedSeptember 6, 2011
Docket65249-4-I
StatusPublished
Cited by29 cases

This text of 260 P.3d 220 (Cummings v. Budget Tank Removal & Environmental Services, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cummings v. Budget Tank Removal & Environmental Services, LLC, 260 P.3d 220, 163 Wash. App. 379 (Wash. Ct. App. 2011).

Opinion

*382 Becker, J.

¶1 Rarely is it possible to have an arbitration award vacated for error of law on the face of the award, and this case is no exception. There are no purely legal issues to examine and no internal inconsistencies that might justify a remand. In addition, it was not an abuse of discretion for the trial court to order the consolidation of two separate arbitration proceedings against the same defendant.

¶2 The appellant in this matter is Budget Tank Removal and Environmental Services LLC. The respondents are James Dougherty and Paul Sauvage (collectively Dougherty). Their dispute arose from work Budget performed for Dougherty in the spring of 2008. Dougherty wanted to build a commercial building on the site of an old gas station. Budget contracted to remove the old petroleum tanks and to remove soil contaminated with petroleum. Budget estimated the total project cost at $21,545. After completing the work, Budget invoiced Dougherty for $638,997.88. Dougherty paid $100,000 and refused to pay any more.

¶3 The contract contained an agreement to arbitrate any disputes. Budget initiated arbitration against Dougherty in July 2008 to recover the unpaid balance. Daugherty counterclaimed.

¶4 In September 2008, another of Budget’s customers, Mary Cummings, initiated a separate arbitration against Budget. Cummings too had contracted for remediation of soil. Budget gave Cummings an estimate of $43,344 and billed her for $364,523.90.

¶5 At first, the two matters were scheduled before different arbitrators. In April 2009, Dougherty and Cummings, represented by the same lawyers, moved jointly in superior court to consolidate the two arbitration proceedings. Consolidation is authorized by RCW 7.04A.100. Over Budget’s objection, the trial court granted the motion.

¶6 The arbitrations were heard in a single proceeding before arbitrator Thomas J. Brewer in October 2009. At the *383 request of the parties, Mr. Brewer issued separate awards. Only the Dougherty matter is at issue in this appeal.

¶7 Mr. Brewer issued a 42-page “Final Award of Arbitrator” on February 8, 2010, in the Dougherty matter. He denied all claims asserted by Budget and granted relief to Dougherty on his counterclaims for breach of contract and violation of the Consumer Protection Act, chapter 19.86 RCW. The award to Dougherty was $1,042,301, inclusive of preaward interest. In addition, Dougherty was awarded more than $500,000 in attorney fees and costs incurred in the arbitration, and more than $25,000 as reimbursement for previously incurred fees, expenses, and arbitrator compensation. The final award against Budget totaled $1,598,939.60.

¶8 Budget moved unsuccessfully to vacate the award. The superior court granted Dougherty’s motions to confirm the award and to add more attorney fees and prejudgment interest. Budget appeals.

CONSOLIDATION

¶9 Budget’s first contention is that the trial court overstepped its authority by ordering consolidation of the Dougherty and Cummings cases.

¶10 Dougherty initially responds that the order of consolidation is not even reviewable. A statute designates specific orders in arbitration actions from which an appeal may be taken, and an order of consolidation is not one of them:

(1) An appeal may be taken from:

(a) An order denying a motion to compel arbitration;
(b) An order granting a motion to stay arbitration;
(c) An order confirming or denying confirmation of an award;
(d) An order modifying or correcting an award;
(e) An order vacating an award without directing a rehearing; or
*384 (f) A final judgment entered under this chapter.
(2) An appeal under this section must be taken as from an order or a judgment in a civil action.

RCW 7.04A.280.

¶11 Dougherty’s challenge to reviewability is not well founded. By its plain language, the statute designates orders from which appeal can be taken, not which orders may be reviewed on appeal. Budget took this appeal from the final amended judgment entered upon Dougherty’s motion to confirm the arbitration award. Budget properly challenged the order of consolidation by assigning error to it as part of this appeal.

112 A party in a civil action on appeal of a final judgment may assign error to an order consolidating claims or causes of action. See In re Marriage of Angelo, 142 Wn. App. 622, 175 P.3d 1096 (affirming order consolidating marriage dissolution action with wife’s tort action after judgment was entered in wife’s favor on tort claims), review denied, 164 Wn.2d 1017 (2008). We conclude the order consolidating the two arbitrations is reviewable in this appeal.

¶13 The uniform arbitration act, chapter 7.04A RCW, authorizes a trial court to consolidate separate arbitration proceedings if all four of the criteria in RCW 7.04A.100(1) are met:

(1) Except as otherwise provided in subsection (3) of this section, upon motion of a party to an agreement to arbitrate or to an arbitration proceeding, the court may order consolidation of separate arbitration proceedings as to all or some of the claims if:
(a) There are separate agreements to arbitrate or separate arbitration proceedings between the same persons or one of them is a party to a separate agreement to arbitrate or a separate arbitration proceeding with a third person;
(b) The claims subject to the agreements to arbitrate arise in substantial part from the same transaction or series of related transactions;
*385 (c) The existence of a common issue of law or fact creates the possibility of conflicting decisions in the separate arbitration proceedings; and
(d) Prejudice resulting from a failure to consolidate is not outweighed by the risk of undue delay or prejudice to the rights of or hardship to parties opposing consolidation.
(2) The court may order consolidation of separate arbitration proceedings as to certain claims and allow other claims to be resolved in separate arbitration proceedings.
(3) The court may not order consolidation of the claims of a party to an agreement to arbitrate that prohibits consolidation.

RCW 7.04A.100.

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Cite This Page — Counsel Stack

Bluebook (online)
260 P.3d 220, 163 Wash. App. 379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cummings-v-budget-tank-removal-environmental-services-llc-washctapp-2011.