Thomsen & Nybeck, P.A., et al, Respondents, vs. Mosen Agamawi, Appellant.

Thomsen & Nybeck, P.A., et al, Respondents, vs. Mosen Agamawi, Appellant. A05-2532, Court of Appeals Unpublished, November 21, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2532

 

 

Thomsen & Nybeck,

P.A., et al,

Respondents,

 

vs.

 

Mosen Agamawi,

Appellant.

 

 

Filed November 21, 2006

Affirmed
Crippen, Judge*

 

Hennepin County District Court

File No. MC 05-11911

 

 

William E. Sjoholm, Thomsen & Nybeck, P.A., 3300 Edinborough Way, Suite 600, Edina, MN 55435-5962 (for respondents)

 

Mosen Agamawi, 18860-85th Place North, Maple Grove, MN 55311 (pro se appellant)

 

            Considered and decided by Worke, Presiding Judge, Toussaint, Chief Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant challenges the district court's judgment confirming an arbitration award and denying appellant's motion to vacate the award.[1]  This appeal is premised on appellant's claim that the arbitrators presiding over a dispute regarding attorney fees showed "evident partiality."  Because the record does not sustain appellant's contention, we affirm.

FACTS

            Appellant Mosen Agamawi hired respondent law firm Thomsen & Nybeck in June 2004 to assist him in an ongoing employment discrimination case.  The parties signed a written agreement to submit any fee dispute to a panel of the Hennepin County Bar Association Legal Fee Arbitration Board.  In December 2004 appellant's employment discrimination case ended when the district court denied his motion for a new trial.  As a result, appellant felt that respondent did not fulfill the obligations it owed him.

            Appellant subsequently disputed respondent's fees.  Based on the parties' written fee agreement, the fee dispute was submitted to arbitration.  The arbitrators found that appellant owed respondent $5,265.45.

            Respondent moved the district court to confirm the arbitration award, and appellant simultaneously moved the court to vacate and modify the award.  The court denied appellant's motions and granted the motion to confirm, explaining that "[appellant's] allegation that there was evident partiality by the arbitrators warranting vacating the arbitration award under Minnesota Statute section 572.19, subdivision 1 is without sufficient evidentiary support."  Accordingly, the district court ordered that judgment be entered in favor of respondent for the amount of the award plus $477 in costs.

            Appellant subsequently moved the district court for relief from the judgment under Minn. R. Civ. P. 60.02 and requested permission to submit a motion for reconsideration.  The court denied the motion and the request.

D E C I S I O N

            An appeal from an arbitration decision is subject to limited review, and this court must exercise "[e]very reasonable presumption" in favor of the arbitration award's finality and validity.  State, Office of State Auditor v. Minn. Ass'n of Prof'l Employees, 504 N.W.2d 751, 754 (Minn. 1993).  The party seeking to vacate the award "has the burden of proving the invalidity of the arbitration award."  Nat'l Indem. Co. v. Farm Bureau Mut. Ins. Co., 348 N.W.2d 748, 750 (Minn. 1984).

            An arbitration award "will be vacated only upon proof of one or more of the grounds stated in Minn. Stat. § 572.19 . . . and not because the district court disagrees with the decision on the merits."  AFSCME Council 96 v. Arrowhead Reg'l Corr. Bd., 356 N.W.2d 295, 299-300 (Minn. 1984) (footnote omitted).  Minn. Stat. § 572.19, subd. 1(2) (2004) provides grounds for vacating an arbitration award where "[t]here was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party[.]"

            "Evident partiality" exists when a neutral arbitrator has contacts with a party or with another arbitrator that might create an impression of possible bias.  Aaron v. Ill. Farmers Ins. Group, 590 N.W.2d 667, 669 (Minn. App. 1999); see, e.g., L & H Airco, Inc. v. Rapistan Corp., 446 N.W.2d 372, 377 (Minn. 1989) (stating that an impression of bias arose from one arbitrator's prior business relationship with one of the parties).  "Evident partiality" is not the same as actual bias because even the appearance of bias is unacceptable.  Pirsig v. Pleasant Mound Mut. Fire Ins. Co., 512 N.W.2d 342, 344 (Minn. App. 1994).  The burden of establishing facts that create a reasonable impression of partiality is on the party challenging the award.  Id. at 343.  "Whether challenged conduct constitutes ‘evident partiality' . . . is a legal question reviewed de novo."  Aaron, 590 N.W.2d at 669. 

            Appellant contends that he presented the district court with undisputed evidence of the arbitrators' "evident partiality" that entitles him to relief.  But none of the four examples of alleged partiality are supported by the record. 

            Appellant argues that respondent and the arbitrators were alone in the room before the hearing, and during that time respondent had the opportunity to influence the arbitrators' decision.  The record does not show evidence of any ex parte conversations between respondent and the arbitrators before the hearing.  Appellant speculates that such communication took place because he did not arrive in the hearing room at the same time as respondent.  Because of the lack of evidence showing an ex parte communication between respondent and the arbitrators, appellant did not meet his burden before the district court to demonstrate facts that create a reasonable impression of partiality.

            Appellant next asserts that the arbitrators displayed bias against him during the hearing.  He contends that the arbitrators did not interrupt respondent during the hearing, but they did not allow appellant to present his case and did not allow appellant to fully question respondent.  The record fails to support appellant's contention that bias was evident.  Appellant's general allegations of unfairness lack evidentiary support, and he has not met his burden to establish facts that create a reasonable impression of partiality.

            Appellant suggests that the arbitrators acted "presumptuously" by not conducting the hearing under oath.  But neither party was under oath during the hearing.  Appellant does not identify a requirement that the parties present matters under oath, and the record does not show that the arbitrators favored respondent by not requiring his oaths.  Here again, appellant has failed to show any facts that create a reasonable impression of partiality.

Finally, appellant claims that respondent provided inadequate representation that led to the fee dispute.  Appellant's claim of inadequate representation is irrelevant to his claim that the arbitrators exhibited "evident partiality" during the hearing, and appellant has not met his burden of showing facts that create a reasonable impression of partiality.

Appellant also cites authority for the proposition that the district court was "under an obligation to scan the record to see if it demonstrates evident partiality on the part of the arbitrators."  Health Servs. Mgmt. Corp. v. Hughes, 975 F.2d 1253, 1258 (7th Cir. 1992).  But appellant failed to show that the district court did not consider the entire record in this proceeding.  The court's order suggests full consideration of the record; the court found that "[appellant's] allegation that there was evident partiality by the arbitrators warranting vacating the arbitration award . . . is without sufficient evidentiary support." 

Appellant has not demonstrated error of the district court in its order confirming the arbitration award or denying appellant's adverse motions.

Affirmed.  

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant also disputes the district court's denials of his related motions, but his arguments on these decisions are no different from those reviewed on the primary decisions confirming the award and are subject to the same analysis stated in this opinion.