PENNEE ANNE HIRN V JOHN B HIRN JR
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PENNEE ANN HIRN,
UNPUBLISHED
April 12, 2002
Plaintiff-Appellant,
v
No. 227224
Oakland Circuit Court
LC No. 98-603025-DM
JOHN B. HIRN, JR.,
Defendant-Appellee.
Before: Jansen, P.J., and Zahra and Meter, JJ.
JANSEN, P.J. (dissenting).
I respectfully dissent. I would vacate the arbitration award because the arbitrator refused
to hear evidence material to the controversy by not allowing plaintiff to call material witnesses,
MCR 3.602(J)(1)(d), and because the arbitrator failed to follow the dictates of the arbitration
agreement.
Initially, I do not find it necessary to be so dismissive of plaintiff’s appeal. Plaintiff has
proceeded in propria persona and, while her brief may not be a model of clarity, I do not believe
that it approaches incomprehensibility. Further, since there are no transcripts of the arbitration
hearing, I am uncertain exactly how plaintiff can be expected to cite to the record. Plaintiff
included many appendices, including the arbitrator’s award, to her brief and the lower court
record has been provided for this Court’s review.
In any event, in addressing the merits of plaintiff’s claims, the arbitration agreement, by
its own terms, was to be controlled by the uniform arbitration act, MCL 600.5001 et seq., and the
Michigan Court Rules and Michigan Rules of Evidence were to apply to the arbitration
proceeding. Because this case involves statutory arbitration, our review is governed by MCR
3.602. See MCL 600.5021. MCR 3.602(J)(1) provides:
On application of a party, the court shall vacate an award if:
(a) the award was procured by corruption, fraud, or other undue
means;
(b) there was evident partiality by an arbitrator, appointed as a
neutral, corruption of an arbitrator, or misconduct prejudicing a party’s rights;
-1-
(c) the arbitrator exceeded his or her powers; or
(d) the arbitrator refused to postpone the hearing on a showing of
sufficient cause, refused to hear evidence material to the controversy, or otherwise
conducted the hearing to prejudice substantially a party’s rights.
In the present case, the face of the arbitration award indicates reviewable and reversible
error by the arbitrator. Plaintiff maintains that the arbitrator denied her request to call witnesses
that had been subpoenaed and were present at the hearings. In the arbitration award, the
arbitrator acknowledged plaintiff’s allegation in this regard, but dismissed it stating that the
parties were “afforded ample opportunity to present evidence and argument to the arbitrator.”
The arbitrator further stated that “[b]ecause this is arbitration and not litigation, the rules of
evidence need not be adhered to closely.” In fact, the arbitration agreement specified that both
the Michigan Court Rules and Michigan Rules of Evidence would be applicable in the arbitration
proceeding.
Consequently, the arbitrator’s award must be vacated because the arbitrator refused to
hear evidence material to the controversy by not allowing plaintiff to call her witnesses at the
hearings. MCR 3.602(J)(1)(d). Moreover, the arbitrator exceeded his powers by failing to
follow the dictates of the arbitration agreement; that is, to apply the Michigan Rules of Evidence
to the arbitration proceeding. This, too, is an error of law that clearly appears on the face of the
award. Gordon Sel-Way, Inc v Spence Bros, 438 Mich 488, 497; 475 NW2d 704 (1991). The
arbitrator was wrong to state that the rules of evidence did not have to be adhered to closely
because the arbitration agreement, from which the arbitrator draws his authority, stated that the
Michigan Rules of Evidence were to apply to the arbitration proceeding. See id., p 496
(arbitrators derive their authority to act from the parties’ arbitration agreement).
Because the arbitrator refused to hear evidence material to the controversy by not
allowing plaintiff to call material witnesses, MCR 3.602(J)(1)(d), and because the arbitrator
failed to follow the dictates of the arbitration agreement requiring the use of the Michigan Court
Rules and Michigan Rules of Evidence at the arbitration proceeding, Gordon Sel-Way, supra, p
496, I would vacate the arbitration award and remand for a new arbitration proceeding in
conformance with the parties’ arbitration agreement.
/s/ Kathleen Jansen
-2-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
