NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re:

ERLING S. CALKINS and ELAINE S.

CALKINS,

Debtors.

ERLING S. CALKINS,

Appellant,

v.

SOUTHERN CALIFORNIA

CONFERENCE OF SEVENTH-DAY

ADVENTISTS, as Trustee,

Appellee.

BAP No. AZ-19-1156-STaF

Bk. No. 3:13-bk-08354-DPC

MEMORANDUM*

Argued and Submitted on May 20, 2020

Filed – June 4, 2020

FILED

JUN 4 2020

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

*

 This disposition is not appropriate for publication. Although it may be cited for

whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential

value, see 9th Cir. BAP Rule 8024-1.
Appeal from the United States Bankruptcy Court

for the District of Arizona

Honorable Daniel P. Collins, Bankruptcy Judge, Presiding

 

Appearances: Appellant Erling S. Calkins argued pro se; Thomas P.

Kack of Musgrove Drutz Kack & Flack, PC argued for

appellee.

 

Before: SPRAKER, TAYLOR, and FARIS, Bankruptcy Judges.

INTRODUCTION

After years of litigation, and a disputed prior settlement, appellant

Chapter 111 debtor Erling S. Calkins entered into a settlement stipulation

with appellee, the Southern California Conference of Seventh Day

Adventists, a non-profit California corporation (“SCC”) (“2016

Settlement”). The bankruptcy court approved the 2016 Settlement, which

provided for arbitration of certain specified issues referred to as the

“Reserved Issues.” The parties waived or released all other disputes. The

parties proceeded to arbitration, where the arbitrator duly decided all of

the Reserved Issues and entered a final award in favor of SCC.

The bankruptcy court confirmed the arbitration award with two

1

 Unless specified otherwise, all chapter and section references are to the

Bankruptcy Code, 11 U.S.C. §§ 101-1532, and all “Rule” references are to the Federal

Rules of Bankruptcy Procedure.

2
minor corrections and enforced the 2016 Settlement. In that process the

court held that the parties had settled all disputes other than the Reserved

Issues. Calkins disagrees with the scope of the Reserved Issues as

interpreted by both the arbitrator and the bankruptcy court. He maintains

that he intended to settle nothing by way of the 2016 Settlement but instead

to arbitrate “all disputes,” not just the Reserved Issues. Calkins alternately

claims that the bankruptcy court erred in failing to vacate the arbitration

award on a number of other grounds. However, there is no support in the

record for any of the arguments Calkins has raised on appeal. He also

referenced in his notice of appeal several other bankruptcy court orders,

but his appeal brief wholly failed to address these other orders.

Accordingly, we AFFIRM.

FACTS

A. The parties’ dispute and the 2011 settlement. 

For over a decade, Calkins has been engaged in litigation with SCC,

its predecessors, and its affiliates. The parties’ dispute arose from a trust 

(“Trust”) settled by Calkins’ parents and naming as trustee SCC’s

predecessor, the Southern California Association of Seventh Day

Adventists, a California non-profit corporation (“SCA”). It also arose from

a 1999 California conservatorship proceeding, in which Calkins was

appointed to serve as conservator for his mother. When she passed away in

2007, the conservatorship proceeding was superseded by a probate

3
proceeding (“Probate Action”). Each side has claimed that the other has

engaged in misconduct while acting in their representative capacities.

According to SCC, Calkins used conservatorship assets to purchase two

parcels of real property, which he transferred to a company that he and his

wife owned (“Properties”).2

In 2011, the parties entered into a settlement of their disputes (“2011

Settlement”). Among other things, the parties agreed that Calkins would

become the new trustee under the Trust and that Calkins would also

become executor of his mother’s probate estate. In addition, the Properties

would be sold and the conservatorship closed, at which point the net

proceeds from the conservatorship would be funded to the Trust, and any

Trust funds in excess of those necessary to pay Trust closing costs

(including certain attorney’s fees) would be paid to the Trust beneficiaries.

B. New disputes, Calkins’ bankruptcy, the 2016 Settlement, and plan

confirmation.

Despite the 2011 Settlement, Calkins continued to fight. Calkins

challenged SCC’s corporate status, its authority to act as the trustee under

the Trust, and hence its authority to enter into the 2011 Settlement. This

challenge stemmed from SCC’s use of different names to identify itself. It

2

 Calkins’ allegations against SCC and its affiliates are both broader and much

less clearly defined in the record. Among other things, he has alleged that SCC and its

predecessors mismanaged the Trust’s assets, overspent on attorney’s fees while

litigating with him, and have improperly acted through unlicensed or insufficiently

licensed entities.

4
alternately referred to itself as the Southern California Conference

Association of Seventh Day Adventists, SCC-SDA Conferences, Southern

California Association of Seventh Day Adventists, and Southern California

Conference of Seventh Day Adventists. In fact, a number of these alternate 

names were listed as signatories to the 2011 Settlement, even though they

apparently were not distinct legal entities from SCC.

When Calkins and his wife filed their chapter 11 bankruptcy petition

in 2013, the litigation between the parties continued in an adversary

proceeding. SCC also opposed Calkins’ reorganization efforts by, among

other things, objecting to his disclosure statement and moving to dismiss or

convert his bankruptcy case. At the time, there also was pending litigation

in the Probate Action, in the Humboldt County Superior Court.

This led to the 2016 Settlement, pursuant to which the parties agreed

to terminate their then-pending litigation. More specifically, the parties

“agreed to settle all disputes above and any and all other disputes and

differences” subject to the terms of their stipulation. Those terms included

the sale of the Properties and an agreement to arbitrate, on request, the

Reserved Issues. As Calkins explained in his application for approval of the

compromise, the 2016 Settlement provided a significant benefit to him and

his bankruptcy estate because, “[t]he Stipulation between these parties will

remove the impediment to Plan Confirmation and allow Calkins to

reorganize.” 

5
The unequivocal purpose of arbitrating the Reserved Issues was to

determine who was entitled to proceeds from sale of the Properties (“Sale

Proceeds”). As specified in the 2016 Settlement: “In the event there are Sale

Proceeds deposited in [Calkins’ bankruptcy counsel’s] client trust account,

then, within thirty (30) days thereafter, either Party may request arbitration

and arbitration will be scheduled and held” in accordance with the 2016

Settlement’s terms. The purpose of the Reserved Issues was further

reflected in the settlement terms explaining what would occur if an

arbitration was not timely requested: 

The right to request an arbitration including raising or

disputing SCC’s right to continue as Trustee or to dispute its

actions as Trustee shall be forever waived if an arbitration is not

requested within thirty (30) days as provided in the opening

paragraph of No. 6 above. In the event arbitration is not timely

requested, then [Calkins' bankruptcy counsel] shall pay the Sales

Proceeds to SCC, as Trustee of the Trust. If SCC is no longer the

Trustee, then said proceeds shall be paid to the Successor Trustee.

2016 Settlement at 5:18-24 (emphasis added).

The Reserved Issues themselves also reflected this purpose. The 2016

Settlement identified the Reserved Issues as follows:

The arbitrator will determine the following: [1] The

enforceability of the [2011 Settlement] provisions; [2] the legal

corporate status of SCC or its predecessors during the lives of

Erling E. [a]nd Ellie K. Calkins, the makers of the Trust; [3] who

shall act as Trustee from and after the arbitration hearing;

[4] who will receive distribution of the Sale Proceeds from

6
Allan NewDelman’s client trust account, [5] what attorneys’

fees, costs and expenses, if any, will be paid from the Sales

Proceeds; and [6] issues and matters reasonably related to any

of the foregoing issues.

2016 Settlement at 5:5-11.3

In September 2017, the bankruptcy court entered its order confirming

Calkins’ chapter 11 plan (“Plan Confirmation Order”). It modified and

restated limited portions of the 2016 Settlement. Of particular note, it

specified “the failure to properly request arbitration within the foregoing

time limits shall constitute a full and final waiver of the right to arbitrate as

provided and limited under Paragraph 6” of the 2016 Settlement. Plan

Confirmation Order at 19:24-27 (emphasis added).

C. The arbitration and the arbitration award.

The arbitration was held over two days in early May 2018. The

arbitrator then rendered his findings and determined the seven Reserved

Issues. First, the arbitrator found that the 2011 Settlement was enforceable.

He then enforced or declared moot specific terms of that settlement as set

forth in detail in his award.

Second, the arbitrator found that, in 2008, SCA duly merged into and

changed its name to SCC. As the arbitrator put it, “SCC is SCA pursuant to

3

 The 2016 Settlement also identified a seventh issue, requiring the arbitrator to

identify the prevailing party and to determine “whether to award fees and costs for the

arbitration process to be paid from the Sale Proceeds.”

7
the Restated Articles of Organization filed by SCA in 2008.” The arbitrator

further found that, under the terms of the Trust, SCC became the successor

trustee for the Trust in 2008 when SCC became SCA’s corporate successor.

The arbitrator therefore concluded that SCC had authority as the successor

trustee to enter into the 2011 Settlement with Calkins.

Third, the arbitrator found that, under California law, Calkins was

ineligible to serve as trustee. Alternately, the arbitrator found that Calkins

knowingly and intentionally waived his right under the 2011 Settlement to

serve as trustee of the Trust by refusing to accept the appointment as

trustee. The arbitrator accordingly concluded that SCC should continue to

serve as trustee of the Trust.

Fourth, in accordance with the 2011 Settlement, the arbitrator

directed that the Sale Proceeds (if any) should be paid to the Trust for

distribution under the terms of the Trust and the arbitration award. The

arbitrator further observed that the Sale Proceeds were “[t]he only known

remaining funds at issue.”

Fifth, the arbitrator identified SCC as the prevailing party in the

arbitration and awarded it reimbursement of the following arbitrationrelated expenses: $26,938.50 for attorney’s fees, $68.57 for costs, $6,735.00

for arbitrator’s fees, and $2,122.64 for other arbitration expenses. He

additionally awarded SCC the following bankruptcy-related expenses:

attorney’s fees of $29,433.50 and costs of $996.68. As the parties have

8
acknowledged, the amount of the arbitration award exceeds the amount of

the Sale Proceeds and the remaining amount available in the Trust for

distribution.

D. Post-arbitration activity in the bankruptcy court.

The ink was hardly dry on the arbitrator’s July 2018 final award

when skirmishing in the bankruptcy court resumed. This time the fight

focused on the 2016 Settlement and the arbitration award. At the direction

of the bankruptcy court, SCC condensed the parties’ post-arbitration

disputes into a single motion, which SCC filed on December 3, 2018. The

motion sought to enforce the 2016 Settlement, the 2017 Plan Confirmation

Order, and the 2018 arbitration award (“Motion To Enforce”). As SCC put

it, these three documents resolved all issues between the parties. SCC also

contended that the court should find that the arbitrator determined all of

the Reserved Issues, did not exceed the scope of his authority, and hence

the arbitration award should be confirmed.4

In January 2019, Calkins responded to SCC’s Motion To Enforce. He

4

 SCC’s Motion To Enforce additionally included requests for two minor clerical

corrections to the arbitration award, for sanctions against Calkins, and for a vexatious

litigant order. The bankruptcy court denied the sanctions motion but granted the

request for clerical corrections and imposed pre-filing review restrictions on any further

bankruptcy court papers Calkins attempted to file pertaining to SCC. Calkins’ notice of

appeal referenced these additional rulings, but he did not address them at all in his

appeal brief. Accordingly, we need not further address them. See Christian Legal Soc'y

Chapter of Univ. Of Cal. v. Wu, 626 F.3d 483, 487–88 (9th Cir. 2010); Brownfield v. City of

Yakima, 612 F.3d 1140, 1149 n.4 (9th Cir. 2010). 

9
principally contended that the 2016 Settlement did not limit the issues

reserved for arbitration. According to Calkins, any and all claims, disputes,

and issues arising from his relationship with SCA, SCC, and their affiliates

should have been part of the issues arbitrated. As he reasoned, the

arbitrator’s failure to address any and all issues established that he

manifestly disregarded the law, deviated from the 2016 Settlement,

exceeded his arbitrator’s powers, and engaged in partiality, collusion,

fraud, and corruption. 

Aside from his grievances about excluded issues that should have

been arbitrated, Calkins complained that he was not given his fair share of

time to arbitrate. He further asserted that the arbitrator contravened the

terms of the 2016 Settlement by awarding SCC bankruptcy-related fees and

costs, arbitration-related fees and costs, and by shifting the prevailing

party’s allocated share of the arbitrator’s fees and expenses. Calkins

claimed that all of this “misconduct” constituted grounds for vacating the

arbitration award. 

At the January 24, 2019 hearing on the Motion To Enforce, the

bankruptcy court determined that the arbitrator duly decided all of the

Reserved Issues and that his decision to refrain from arbitrating any

probate-related issues, except for those specifically covered by the

Reserved Issues, did not contravene the 2016 Settlement. The court, in fact,

reiterated several times that, in its view, the arbitrator covered all of the

10
issues he needed to cover as specified in the 2016 Settlement and that all

other issues not covered were consensually resolved pursuant to the terms

of the 2016 Settlement. The court also addressed Calkins’ other allegations

of arbitration misconduct and determined that they were factually

unsupported, or did not rise to the level of corruption, fraud, evident

partiality, or any other ground for vacatur.

The bankruptcy court entered an order granting the Motion To

Enforce and confirming the arbitration award. The bankruptcy court

specifically found that the arbitrator had “dealt with all issues and entered

all relief required” by the court’s prior orders. It also found that the

arbitrator had “properly exercised his judgment in determining the scope

of his inquiry and in the rulings that he made as reflected in the Final

Award.” Moreover, the court both ordered and directed Calkins “that his

dispute with SCC is done and it is over and, to the extent that there are

additional filings by Mr. Calkins or by Mrs. Calkins, that this Court will

likely consider them to be vexatious and possible consider such pleadings

to be filed in bad faith, except in the event that his filings are in response to

motions or appeals filed by SCC.”

On the heels of the entry of the order granting the Motion To Enforce,

Calkins filed two objections and a response – all on May 29, 2019. Shortly

thereafter, on May 31, 2019, the bankruptcy court entered an additional

order. The May 31, 2019 order treated the two May 29, 2019 objections and

11
the May 29, 2019 response as motions under Rules 9023 and 9024, denied

those motions, and found that the orders as prepared by SCC were entirely

consistent with the court’s oral rulings. The court further found that

Calkins was afforded ample due process because SCC made efforts over an

extended period of time to work with Calkins on the form of the orders,

but Calkins did not reasonably cooperate in the preparation of the orders in

a form consistent with the court’s oral rulings.

Calkins timely appealed the order granting the Motion To Enforce

and the May 31, 2019 order.5

JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and

157(b)(2)(A). We have jurisdiction under 28 U.S.C. § 158.

ISSUE

Did the bankruptcy court commit reversible error when it granted

SCC’s Motion To Enforce and confirmed the arbitration award?

STANDARD OF REVIEW

Our review of the enforcement order requires us to consider the

5

 Calkins additionally filed a motion for new trial on May 30, 2019. The

bankruptcy court entered an order denying the new trial motion on August 22, 2019.

Calkins filed a separate appeal from the denial of the new trial motion as well as a

motion for reconsideration of that denial. This Panel denied consolidation of this later

appeal with the appeal from the bankruptcy court’s May 2019 orders. Thus, the August

2019 denial of the new trial motion is beyond the scope of this appeal. However, given

that the order denying the new trial motion was not entered until August 22, 2019, the

June 19, 2019 appeal from the May 2019 orders was timely filed, per Rule 8002(b).

12
bankruptcy court’s interpretation of the 2016 Settlement. The interpretation

of a settlement agreement, like the construction of any contract, generally is

subject to de novo review. Pekarsky v. Ariyoshi, 695 F.2d 352, 354 & n.1 (9th

Cir. 1982); Kittitas Reclamation Dist. v. Sunnyside Valley Irrigation Dist., 626

F.2d 95, 98 (9th Cir. 1980).6

We also review de novo the confirmation of the arbitration award.

New Regency Prods., Inc. v. Nippon Herald Films, Inc., 501 F.3d 1101, 1105 (9th

Cir. 2007) (citing Poweragent Inc. v. Elec. Data Sys. Corp., 358 F.3d 1187, 1193

(9th Cir. 2004)).

DISCUSSION

A. The bankruptcy court did not err in confirming the arbitrator’s

decision regarding the scope of the arbitration.

Despite his numerous grievances, Calkins only develops one genuine

issue in his appeal brief. He argues in myriad ways that the arbitrator and

6

 The bankruptcy court approved the 2016 Settlement later modified and partially

restated it in its Plan Confirmation Order. By doing so, the 2016 Settlement arguably

became part of the Plan Confirmation Order. We give significant deference to the

bankruptcy court’s interpretations of its own orders. Rosales v. Wallace (In re Wallace),

490 B.R. 898, 906 (9th Cir. BAP 2013) (citing Hallett v. Morgan, 296 F.3d 732, 739–40 (9th

Cir. 2002)). On the other hand, we must review de novo the bankruptcy court's

interpretation of unambiguous contractual provisions. See Mattel, Inc. v. MGA Entm't,

Inc., 616 F.3d 904, 909 (9th Cir. 2010), as amended on denial of reh'g (Oct. 21, 2010); see also

L.K. Comstock & Co. v. United Eng'rs & Constructors Inc., 880 F.2d 219, 221 (9th Cir. 1989)

(“when a district court interprets a contract without using extrinsic evidence, the

standard of review is de novo”); Cannon v. Haw. Corp. (In re Haw. Corp.), 796 F.2d 1139,

1143 (9th Cir. 1986) (same). We have conducted a de novo review of the 2016 Settlement

and have reached the exact same conclusion as the bankruptcy court. The application

here of a more deferential standard would not yield a different result. 

13
the bankruptcy court deviated from the 2016 Settlement by not addressing

the “probate issues,” which has caused these issues to be “orphaned”

without resolution. Calkins never specifically has identified what he means

by “probate issues” or “all issues.” He failed to do this in the bankruptcy

court, and he has failed to do this on appeal.

Calkins asserts that the 2016 Settlement reserved all issues for

arbitration. He posits that this was made clear by the language in

paragraph 6.c. of the 2016 Settlement reserving for arbitration “issues and

matters reasonably related to” one of the five specifically enumerated

Reserved Issues immediately preceding the “reasonably related to”

language.7 He additionally relies on the recital referring to “[f]urther

disputes between the parties,” including issues in the California Probate

Action, as evidence that the probate issues were subject to arbitration. See

2016 Settlement at recital B. In short, Calkins argues that both the arbitrator

and the bankruptcy court erroneously interpreted the scope of the 2016

Settlement. 

The arbitrator first rejected Calkins’ argument that the probate issues

were part of the arbitration.8 He reasoned that any probate issues were not

7

 But he never coherently explains why any of these so-called orphaned issues

are reasonably related to the five specifically enumerated Reserved Issues set forth in

the 2016 Settlement. Nor are we aware of any such explanation.

8

 The question of whether the arbitrator or the court should decide arbitrability

(continued...)

14
included within the five identified Reserved Issues listed in paragraph 6.c.

of the 2016 Settlement and were not reasonably related to those Reserved

Issues. The bankruptcy court agreed with the arbitrator’s reading of

paragraph 6.c. and the exclusion of the probate issues from the arbitration.

Construing the 2016 Settlement, the bankruptcy court further found that

the parties had settled all matters except those enumerated matters

reserved for arbitration. Accordingly, the ultimate issue in this appeal is

whether the bankruptcy court erred when it construed the 2016 Settlement

Agreement and held that the probate issues were not reserved for

arbitration and had been settled.

Like other contracts, bankruptcy settlement agreements are construed

under state contract law. In re Haw. Corp., 796 F.2d at 1143; Commercial Paper

8

(...continued)

issues is a complicated one that neither party addressed in any detail. Both parties agree

that First Options of Chi., Inc. v. Kaplan, 514 U.S. 938 (1995), governs the arbitration.

According to Kaplan, when the parties clearly and unmistakably have agreed that the

arbitrator has the power to decide arbitrability issues, that decision is subject to the

same extremely deferential standards applicable to the arbitrator’s merits decisions. Id.

at 943-45. And when the parties agree to abide by the commercial rules of the American

Arbitration Association (“AAA Rules”), this constitutes “clear and unmistakable”

evidence for the arbitrator to decide arbitrability. See Brennan v. Opus Bank, 796 F.3d

1125, 1130 (9th Cir. 2015); Brake Masters Sys., Inc. v. Gabbay, 78 P.3d 1081, 1088 (Ariz. Ct.

App. 2003). Because the parties executed an Agreement To Private Arbitration, which

specifically provided that the arbitration would be conducted in accordance with the

AAA Rules, the arbitrator had the primary power to resolve the arbitrability issue. Its

decision regarding the scope of issues to be arbitrated is entitled to significant

deference. Pragmatically, however, this issue is immaterial because both the arbitrator

and the bankruptcy court agreed that the probate issues were not part of the arbitration.

15
Holders v. Hine (In re Beverly Hills Bancorp), 649 F.2d 1329, 1333 (9th Cir.

1981). When construing an agreement under Arizona law, the court must

ascertain and give effect to the parties’ manifested intent at the time the

contract was made. Taylor v. State Farm Mut. Auto. Ins. Co., 854 P.2d 1134,

1139 (Ariz. 1993); Sam Levitz Furniture Co. v. Safeway Stores, Inc., 464 P.2d

612, 614 (Ariz. 1970). In determining the parties’ manifested intent, and

whether the contract’s language is reasonably susceptible to more than one

meaning, the court initially needs to consider any extrinsic evidence

offered. Taylor, 854 P.2d at 1140. If, after considering any extrinsic evidence

offered and the contract’s language, the court determines the language is

reasonably susceptible to only one meaning, the court must enforce the

contract as written. See UIP Ltd., L.L.C. v. Lincoln Nat’l Life Ins. Co., Case No.

CV-09-0006-PHX-NVW, 2009 WL 4497233, at *5 (D. Ariz. Nov. 30, 2009)

(citing Long v. City of Glendale, 93 P.3d 519, 528 (Ariz. Ct. App. 2004)).

Calkins did not attempt to present any extrinsic evidence to support

his interpretation of the 2016 Settlement as reserving “all issues” for future

resolution. He completely failed to develop the record on this issue and

instead solely relied on the 2016 Settlement language. The 2016 Settlement,

as a whole, made clear that the document was, in fact, a settlement of all

disputes between the parties, except for those expressly reserved in

paragraph 6.c. The recitals upon which Calkins relies established that the

probate issues were part of matters being settled. While the 2016 Settlement

16
then provides for arbitration, it specifically and expressly limited the

matters for arbitration to those identified in paragraph 6.c. This restricted

subset necessarily precludes any argument that all the matters being settled

were subject to arbitration. Moreover, the Reserved Issues themselves,

together with the surrounding language regarding waiver of the right to

arbitrate, reflected that the purpose of the arbitration was to determine

who should distribute the Sale Proceeds and to whom they should be

distributed.

A court must “apply a standard of reasonableness” to the contract’s

language and must construe it contextually and “in its entirety . . . in such a

way that every part is given effect.” Ariz. ex rel. Goddard v. R.J. Reynolds

Tobacco Co., 75 P.3d 1075, 1078 (Ariz. Ct. App. 2003). Calkins’ proffered

meaning of the 2016 Settlement makes no sense at all. If the parties’ true

intent had been to reserve “all issues” and arbitrate them, they did not

need to enter into a settlement agreement at all. An arbitration agreement

would have sufficed. Nor would there have been any need to include or

define the Reserved Issues enumerated in paragraph 6.c. In other words,

Calkins’ interpretation of the 2016 Settlement would render paragraph 6.c.

meaningless. Chandler Med. Bldg. Partners v. Chandler Dental Grp., 855 P.2d

787, 791 (Ariz. Ct. App. 1993) (“the court will not construe one provision in

a contract so as to render another provision meaningless.”).

In short, the bankruptcy court did not err in ruling that the 2016

17
Settlement resolved all disputes between Calkins and SCC other than the

Reserved Issues. Nor did it err by confirming the arbitrator’s decision to

exclude the probate issues from arbitration. 

B. The remainder of Calkins’ challenges to the arbitration award are

without merit. 

Calkins’ other arguments on appeal are without merit. An arbitrator’s

decision is largely beyond attack except for the extremely limited grounds

for vacatur stated in the federal Arbitration Act or in Arizona’s arbitration

laws. Compare 9 U.S.C. § 10 with A.R.S. § 12-3023. As the Supreme Court

generally has observed, arbitrators “have completely free rein to decide the

law as well as the facts” and their decisions on the facts and law “are not

subject to appellate review.” Commonwealth Coatings Corp. v. Cont’l Cas. Co.,

393 U.S. 145, 148-49 (1968); see also New Regency Prods., Inc., 501 F.3d at 1105

(same).

In an attempt to establish grounds for vacatur, Calkins mentioned a

handful of alleged mistakes in the way the arbitration was conducted. He

argues that the arbitrator deviated from the 2016 Settlement, exceeded his

authority, colluded with SCC, committed fraud, manifestly disregarded the

law, and exhibited evident partiality in favor of SCC. In light of the de novo

standard of review applicable to a trial court’s decision to confirm or vacate

an arbitration award, we have independently reviewed the record

presented to the bankruptcy court, and we have found no grounds to

18
vacate the arbitration award. 

Calkins makes mention of one ex parte communication by SCC,

remedied within hours, regarding clarification of a deadline for SCC to file

a certain paper with the arbitrator. Calkins also mentioned an alleged

extension of this deadline by one or two days. Additionally, there was an

allegation that SCC enjoyed more arbitration hearing time than Calkins

and that Calkins was deprived of two hours of arbitration hearing time. Yet

the bankruptcy court found that Calkins rested his presentation and hence

voluntarily relinquished his additional two hours. Calkins further contends

that, in granting fees and costs to SCC, the arbitrator exceeded a cap on fees

set forth in the 2016 Settlement, but we have located no such cap.

At bottom, without any factual development, Calkins claims that

these alleged incidents prejudiced his substantial rights, resulted in an

unjust arbitration award, and constituted grounds to vacate under 9 U.S.C.

§ 10, under A.R.S. § 12-3023, or both. Our independent review of the record

has located no evidence to support his claims of prejudice, corruption,

fraud, collusion, injustice, manifest disregard for the law, or any other

potential ground for vacatur.

CONCLUSION

For all of the foregoing reasons, we AFFIRM the bankruptcy court’s

order granting SCC’s Motion To Enforce the 2016 Settlement and

confirming the arbitration award. We also AFFIRM the bankruptcy court’s

19
other orders referenced in Calkins’ notice of appeal.9

9

 On January 23, 2020, SCC filed a motion to strike certain documents attached to

Calkins’ reply brief. That motion is hereby ORDERED GRANTED. The subject

documents were not part of the bankruptcy court record, and Calkins has not

persuaded us that there are any legally cognizable grounds for us to consider these

documents in the first instance. Also, on May 19, 2020, Calkins filed an “Update on State

Court Filings,” pursuant to which Calkins claims that SCC’s action of seeking and

obtaining dismissal of its state court action to confirm the arbitration award violated

prior orders staying the state court action. However, in the bankruptcy court’s May 23,

2019 order confirming the arbitration award, the bankruptcy court specifically directed

SCC to dismiss the state court action. In any event, we will not further consider the

Update on State Court Filings because it is beyond the scope of and is not relevant to

our disposition of this appeal.

20