Shannon v. Swyers

879 P.2d 1339, 129 Or. App. 573, 1994 Ore. App. LEXIS 1202
CourtCourt of Appeals of Oregon
DecidedAugust 10, 1994
Docket9212-08159; CA A78731
StatusPublished
Cited by1 cases

This text of 879 P.2d 1339 (Shannon v. Swyers) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shannon v. Swyers, 879 P.2d 1339, 129 Or. App. 573, 1994 Ore. App. LEXIS 1202 (Or. Ct. App. 1994).

Opinion

HASELTON, J.

Plaintiff petitioned for an order compelling defendants to arbitrate. ORS 36.310.1 The trial court denied the order and dismissed plaintiffs petition. We affirm.

The proceeding resulted from a dispute that arose at the July, 1992, Oregon State Republican Convention at which defendant Swyers was elected as National Committeewoman. Plaintiff challenged the validity of the election. At the Republican National Convention in Houston in August, plaintiff met with Swyers and defendant Berkman, who was Chairman of the Oregon Republican Party at that time, in order to settle the dispute before the members of the Republican National Committee were seated at the convention. As a result of the meeting, the parties2 executed an agreement on August 18, which provided, in part:

“3. Following the national convention, arbitrators will be chosen according to procedures recognized by the American Arbitration Association. This process must be completed by the end of November 1992.
“4. Between November 15, 1992 and December 15, 1992, a formal arbitration proceeding will be held in the city of Portland, Oregon. At this arbitration proceeding, all parties to this Agreement will have an opportunity to call witnesses, produce evidence and provide testimony as allowed for by the Rules of the American Arbitration Association. Furthermore, all parties agree to prehearing discovery as if this case were coming to trial in the State of Oregon.”3

On October 14, plaintiffs counsel wrote to Swyers and Berkman. At the top of the letter is written, “Re: Request for Arbitration.” It reads, in part:

[576]*576“This is a formal notification that I represent Marilyn [sic] Shannon and on her behalf wish to advise you that she requests an arbitration proceeding * * * to be held pursuant to the agreement entered into * * *.
“So that we may promptly proceed to designate an arbitrator, please contact me with [the] name of your attorney or authorized representative.”

On October 16, Berkman left a message with plaintiffs counsel that he would respond after the election, which was held on November 3. On November 11, counsel wrote attorney Deras, who served in a voluntary position as legal counsel to the Oregon Republican Party. Plaintiffs counsel wrote that, “[u]nless satisfactory progress is achieved by November 16,” a suit to compel arbitration would be filed. That same day, he also phoned Deras, who told counsel that he knew nothing of the arbitration, but that Swyers was out of the country and was expected back later that week. Neither Deras nor Berkman knew whether Swyers had retained counsel before she left. On November 30, plaintiffs counsel received a letter from attorney Jack Faust stating that he expected to be representing Swyers and would get in touch when the fee issue was resolved.

On December 1, plaintiff filed her petition to compel arbitration. In dismissing plaintiffs petition, the trial court concluded that, under the agreement, she had the burden of proceeding with the arbitration in a timely manner, and that she had failed to do so.4

The parties’ arguments on appeal center around whether the reference to the American Arbitration Association (AAA) procedures in section 3 of their agreement incorporated the notice requirement of AAA Rule 6, which [577]*577provides that arbitration is commenced by the filing of written notice of intent to arbitrate.5 Under Rule 6, the notice must be served on the opposingparty ‘ ‘within the time period, if any, specified in the contract” and filed with AAA. Defendants assert that such notice is a prerequisite to the appointment of arbitrators under the AAA’s procedures. If, as defendants contend, the AAA written notice requirement was incorporated in the agreement, plaintiffs noncompliance with that requirement could bar any entitlement to arbitration.

Plaintiff counters that the agreement’s reference to “procedures recognized by the AAA” in paragraph 3 specifically refers to procedures for choosing arbitrators, to calling witnesses, and taking testimony, as explicitly stated in paragraphs 3 and 4, and that no other references to AAA rules appear. Thus, she contends, the agreement shows that the parties did not intend to incorporate any remaining AAA rules, including the written notice of intent to arbitrate. Plaintiff argues that notice was not necessary because the parties agreed to arbitrate an existing dispute and that they all understood that their next obligation was to choosé an arbitrator.

[578]*578In Portland Assn. of Teachers v. School Dist. No. 1, 51 Or App 321, 327, 625 P2d 1336 (1981), we held:

“The presence of ambiguous language in a contract, whether in the arbitration clause or the substantive portions of the contract itself, is precisely the situation in which the question of arbitrability is one to be decided by the arbitrator.”

It follows that resolving the ambiguity of what provisions of the AAA rules were incorporated in the agreement would be a question for the arbitrator.

However, it does not follow that even if there were an otherwise arbitrable ambiguity, the trial court was obliged to order arbitration. In Moresi v. Nationwide Mutual, 309 Or 619, 789 P2d 667 (1990), the Supreme Court noted that, before a court may compel arbitration under ORS 36.310, more must be shown than the mere existence of a dispute that is arguably subject to an agreement to arbitrate. A plaintiff must further prove the “statutory condition precedent” that a defendant has “failed, neglected or refused to arbitrate in accordance with a contract arbitration provision.” 309 Or at 622-23.

In IFG Leasing Co. v. Snyder, 77 Or App 374, 713 P2d 630 (1986), we discussed the interplay of ORS 36.310 with an agreement providing for arbitration under AAA rules.6 In that case, the defendant defaulted on a lease agreement which contained a provision for AAA arbitration. The plaintiff requested arbitration, gave the defendant notice, and then proceeded with the ex parte process now found in AAA Rule 30.7 When the plaintiff sought to have the arbitration award filed with the court, the defendant objected, arguing that the award was void because the plaintiff had not complied with the statutory procedure by obtaining a court order to compel arbitration.

“Unless the law provides to the contrary, the arbitration may proceed in the absence of any party or representative who, after due notice, fails to be present or fails to obtain a postponement. An award shall not be made solely on the default of a party. The arbitrator shall require the party who is present to submit such evidence as the arbitrator may require for the making of an award.”

[579]*579We rejected the defendant’s position. We noted that, by agreeing to have their dispute resolved by the AAA rules, the parties agreed to be bound by those rules:

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Cite This Page — Counsel Stack

Bluebook (online)
879 P.2d 1339, 129 Or. App. 573, 1994 Ore. App. LEXIS 1202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shannon-v-swyers-orctapp-1994.