UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ CAN D. GIDDING, an individual, Petitioner - Appellant,

v. TIMOTHY W. FITZ, an individual; KELLY E. FITZ, an individual, Respondents Co unter Movants - Appellees,

v. CAN D. GIDDING, a /k/a Can Danny Gidding, a/k/a John Gidding; GIDDING & SPENCER; FOUR YEAR GAP, LLC; MIDSHORE MARKETING, INC.; JANUS ARCH, Counter Respondents. No. 18-1106 (D.C. No. 1:17-CV -01334-RM-NYW) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , KELLY , and PHILLIPS , Circuit Judges.

________________ _________________

* After examining the briefs and appellate record, this panel ha s determined unanimously to honor the parties ’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir . R. 34.1(G). The case is ther efore submitted without oral argument. T his order and judgment is no t binding precedent, except under the doctrines of la w of the case, res judicata, an d collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 6, 2018
Elisabeth A. Shumaker Clerk of Court2 Can D. Gidding appeals from the district court’s denial of his motion to vacate an arbitration award and grant of appellees’ motion to confirm the award. Exercising jurisdiction under 28 U.S.C. § 1291, 1 we affirm.
I. BACKGROUND Gidding is a designer who has a ppeared on shows on the HGTV cab le channel. Appellees Timothy and Kelly Fitz w anted to renovate a house in Denver, Colorado. Understanding that Gidding was doi ng business as a designer and architect through a company called Midshore Marketi ng, Inc., the Fitzes signed a co ntract with Midshore for the renovation project. Over time, other entities related to Gidding (including Four Year Gap, LLC, and Gidding & Spencer) also were involved i n the renovation. The project went poorly, and the Fitzes ultimatel y terminated t he contract. By the time the Fitzes were able to m ove into their house, the project was eighteen months late and hundreds of thousa nds of dollars over budget. In May 2015, Midshore brought an arbitration proceeding against Mr. Fitz for unpaid monies. The arbitration was conducted under the America n Arbitration Association’s (AAA) Construction Industry Arbitration Rules (CI AR) effective as of October 1, 2009. Midshore and Mr. Fitz consulted on appointing an arbitrator, and the AAA appointed one. But the a rbitration soon expanded beyon d the two opposing parties. With the Fitzes’ cons ent, Ms. Fitz was added as a res pondent. And in

1 We initially questioned our jur isdiction because the district court had not entered judgment as to all par ties when Gidding filed his notic e of appeal. The district court later entered a final, appealable judgment.3 addition to bringing counterclaim s against Midshore, the Fitzes sought to join Gidding, Four Year Gap, and Gidding & Spencer as counter respon dents. Pursuant to CIAR R-7, the AAA appointed a di fferent arbitrator to consider joinder. In September 2015, the R-7 arbitrat or ordered the joinder of Giddi ng and the other parties. The joinder did not dis turb the previous appointment of the merits arbitrator. Gidding limited his participati on in the arbitration. He did n ot file an answer to the counterclaims. He appear ed at December 2015 conferences through counsel, but counsel withdrew their appear ance for Gidding in February 2 016. Gidding then failed to appear for a May 2016 preliminary hearing, at which t he arbitrator set the merits hearing for February 20 17. On February 10, 2017, three days before the arbitration hearing was to beg in, Gidding e-mailed the AAA, the arbitrator, and the parties, rejecting the arbitrato r’s jurisdiction and declining to participate. By the hearing date, only the F itzes’ counterclaims were at iss ue. The Fitzes were the only parties to attend the hearing. After they presen ted their case, the arbitrator found in their favor a nd issued a final award making Gidding and the various entities jointly and seve rally liable to pay $819,926.6 6. Gidding moved the federal distri ct court to vacate the award. The Fitzes responded and moved th e district court to confirm the award. T he magistrate judge recommended that the award be c onfirmed. The district court ag reed, granted the motion to confirm, and denied the motion to vacate. Gidding no w appeals.4 II. ANALYSIS “Under the Federal Arbitration Act (FAA), we may vacate an arbi trator’s decision only in very unus ual circumstances.” THI of N.M. at Vida Encantada, LLC
v. Lovato , 864 F.3d 1080, 1082 (10th Cir. 2017) (internal quotation mark s omitted). “[W]e review legal questions d e novo and factua l findings for c lear error.” Id. at 1083 (internal quotation marks om itted). “Our task is to asses s whether the district court correctly followed the re strictive standard that governs judicial review of an arbitrator’s award.” Id. “Our review of the [arbitrato r’s] decision under the FAA is str ictly limited; this highly deferential standa rd has been described as among th e narrowest known to the law.” Bowen v. Amoco Pipeline Co. , 254 F.3d 925, 932 (10th Cir. 2001) (internal quotation marks omitted). “Mi ndful of the strong federal polic y favoring arbitration, a court may grant a motion to v acate an arbitration award only in the limited circumstances provided in § 10 of the FAA, 9 U.S.C. § 10, or in accordance with a few judicially created exceptions.” Bowen , 254 F.3d at 932. FAA § 10 allows vacatur where (1) “the award wa s procured by corruption, fraud, or undue means”; (2) “there was evident partial ity or corruption in the arbitrat ors”; (3) the arbitrators were guilty of certain misconduc t or misbehavior that prejudice d the parties; or (4) “the arbitrators exceeded the ir powers, or so imperfectly e xecuted them that a mutual, final, and definite award upon the subject matter submi tted was not made.” 9 U.S.C. § 10. The judicially c reated exceptions include “a ba sic requirement that an5 arbitrator must grant the partie s a fundamentally fair hearing. ” Bowles Fin. Grp., Inc. v. Stifel, Nicolaus & Co. , 22 F.3d 1010, 1012-13 (10th Cir. 1994). 2 Before the district court, Giddi ng alleged numerous deficiencie s in the arbitration proceeding, but on appeal he has narrowed his objec tions down to the appointment of the merits arbitrat or before he was joined in th e arbitration. He asserts that the appointment vio lated the CIAR, and therefore t he parties’ agreement, and deprived him of his right to participate in the selection o f the arbitrator. As a result, he asserts, t he proceeding was not fundamentally fair. The district court held that the pre-joinder appointmen t did not justify vacating the a rbitration award. It rejected Gidding’s reliance on CEEG (Shanghai) Solar Science & Technology Co. v.
LUMOS LLC , 829 F.3d 1201 (10th Cir. 2016) , because that case did not inv olve an award that was subject to c onfirmation under the FAA. We affirm the grant of the motio n to confirm and the denial of the motion to vacate for substantially the re asons discussed by the district court. The district court correctly distinguished CEEG , in which this court held a p arty had been deprived of proper notice of an arbitration a nd therefore deprived of the o pportunity to participate in selecting arbitrators, id. at 1207-08. As the district court pointed out, CEEG did not involve the FAA, but instead came under the Convention on t he Recognition and

2 This court has recognized that another of the judicially creat ed exceptions (manifest disregard of the law) may no longer be viable in ligh t of Hall Street Associates, L.L.C. v. Mattel, Inc. , 552 U.S. 576, 585, 587 (2008). See THI of N.M. at Vida Encantada, LLC , 864 F.3d at 1085 & n.1. Given t hat Gidding is not entitled t o relief, we need not decide in th is case what, if any, effect Hall Street may have on the fundamental fairness exception.6 Enforcement of Foreign Arbitral Awards (the New York Convention ). The New York Convention provides differe nt defenses than the FAA, inclu ding a defense of “improper composition of t he arbitral tribunal.” Id. at 1207. There fore, as the district court held, CEEG did not establish that Gidding had a right under the FAA to vacate the arbitration award. There is no indication that the a ppointment of the merits arbit rator before Gidding’s joinder resulted in a f undamentally unfair hearing. See Bowles Fin. Grp. , 22 F.3d at 1013 (“The courts seem to agree that a fundamentally fair hearing requires only notice, opportunity to be hear d and to present relevant an d material evidence and argument before the decision makers, and that the decisionm akers are not infected with bias.”). Further , on appeal the Fitzes offer a n ew, but persuasive, reason to affirm: that Gidding fa iled to avail himself of an a rbitral remedy for the alleged due process violation. 3 Specifically, CIAR R-7(c) pr ovides that, “[i]f the R-7 arbitrator determines . . . tha t the joinder of additional part ies is permissible, that arbitrator may also establish a process for sele cting arbitrato rs for any ongoing or newly constituted case.” As the Fitzes point out in their appe llate response brief, during the arbitration Gidding f ailed to object to the merits a rbitrator and failed to invoke CIAR R-7(c). In his reply brief, Gidding d enies the exi stence of CIAR R-7(c) (despite it appearing in the copy of the CIAR that he attached to his opening brief)

3 “[W]e may affirm on an unpreser ved ground if doing so is fair to appellant.” United States v. Iverson , 818 F.3d 1015, 1022 (10th Ci r. 2016). We see no unfairness to Gidding, who had the opportun ity to respond to the Fitzes’ a rgument in his reply brief. CIAR R-7(c) presents no complex legal or factual issues

. See id.7 and maintains that he was without a remedy because the merits a rbitrator had been appointed before he was joined in the arbitration. In light of the plain text of CIAR R-7(c), Gidding’s bare den ial is not persuasive. Gidding’ s failure to invoke CIAR R-7(c) in the arbitration is fatal to his claim to have be en denied due process through the pre-joinder se lection of the arbitrator.
III. CONCLUSION The Fitzes’ motion for leave to file a sur-reply is denied. T he district court’s judgment is affirmed.

Entered for the Court
Gregory A. Phillips Circuit Judge