### FILED February25, 2016 In the Office ofthe Clerk ofCourt W A State**Cou~** ofAppeals, Division III
INTHE COURTOF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE GARRETT RANCHES LLC, a . ) No. 3317S-0-III WashingtonLimited Liability Company, ) ) Respondent, ) ) 

### v. ) UNPUBLISHED OPINION ) LARRYHONNFAMILYLLC, a ) Washington Limited Liability Company, ) ) Appellant. ) LAWRENCE-BERREY, 

### J.

- The Larry HonnFamily, LLC (the Honns)appeal the trial court's confinnation ofan arbitration award in favor ofGarrettRanches, LLC (the Garretts). The Honns argue (1) the trial court erred when it appointed the nonparty arbitratorbecause the Garretts failed to establishthattheparties' agreedmethod for appointing an arbitratorhad failed, (2) the trial court erred in notvacating the arbitration award, giventhepriorprofessional and current social relationships betweenthe nonparty arbitrator andthe Garretts' counsel, (3) the trial court erred in notvacatingthe arbitration award for obvious error, and (4) the trial court erred in notrecusing itself. We disagreeNo. 33175-0-III GarrettRanches v. LarryHonn Family
with the Honns' arguments and affirm. FACTS AND PROCEDURE In September 2010, the Honns and the Garretts entered into a "Cash Rent Farm Lease with Option to Purchase." Clerk's Papers (CP) at 312. Under the terms ofthe lease, the Honns leased certain farmland in Whitman County to the Garretts. The lease also contained an option for the Garretts to purchase the land. Underthe terms ofthe lease: 15. Arbitration: In the event any dispute shall arise between the parties, or with respect to this Lease, then and in that eventthe parties shall submit such issues to binding arbitration in accordance with R.C.W. 7.04A. Each party shall appoint one arbitrator, the two arbitrators shall appoint a third arbitrator, and the three arbitrators shall meet and decide any issues submitted to them within thirty (30) days oftheir appointment, which decision shall be final and binding on both parties. The arbitrators shall have all the powers and duties as are set forth in R.C.W. Chapter 7.04A. Venue shall be in Whitman County, Washington. CP at 317. Soon afterthe lease was entered, the Honns and the Garretts beganto dispute its validity and terms. The matter was submitted to arbitration in 2010, where the arbitrators determinedthatboth the lease and optionwere valid and enforceable. The matter was again submittedto arbitration in 2011, as the parties could not agree to the terms ofthe sale pursuantto the option. In an unpublished 2013 case, this court affirmed the trial
2No. 33175-0-111 GarrettRanches v. LarryBonnFamily

court orders confirmingthe arbitration awards in favor ofthe Garretts. See Garrett Ranches LLC

### v. LarryBonnFamilyLLC, noted at 177 Wn. App. 1014,2013 WL 5658373. In the first two rounds ofarbitration, Read Smith served as the Garretts' party arbitrator, David Gittins wasthe Honns' party arbitrator, andDwayne Blankenship was the nonparty arbitrator. This appeal stems from a further round ofarbitration between the Honns and the Garretts. The subject ofthis round was whetherthe option to purchase was unenforceable for lack ofconsideration. Mr. Smith remained the Garretts' party arbitrator, butthe Honns chose a newparty arbitrator, FrankGebhardt. On September 25,2014, the Garretts filed a motion with the trial courtrequesting that it appoint Dwayne Blankenship, the nonparty arbitrator in theprior arbitrations, as the third arbitrator for the current matter. The Garretts' counsel submitted a declaration that stated the party arbitrators had reached a deadlock on selection ofthe nonparty arbitrator. Attached to the declaration were e-mails where the Garretts' counseltold the Honns' counsel: "I am underthe impression that ourtwo arbitrators have not chosen a third arbitrator because ofconfusion on the issue." CP at 11. In the chain ofresponse emails, the Honns' counsel did not deny a deadlock, butratherthe two attorneys beganto argue regarding Mr. Blankenship's qualifications. In response to the Garretts' motion,
3No. 33175-0-111 GarrettRanches v. LarryHonn Family
the Honns asserted that the party arbitrators were not deadlocked, and that appointment of any nonparty arbitrator recommended by a party would be inherently biased. The Honorable DavidFrazierpresided over the October 3, 2014, motion hearing. Instead ofappointing Mr. Blankenship (as suggested by the Garretts), Judge Frazier gave the party arbitrators two additional weeks to agree on a nonparty arbitrator. Absent an agreement by that time, Judge Frazier indicated that Timothy Esser would be appointed. Judge Frazier explained his choice ofMr. Esser on the record: I'm not appointing [Mr. Esser] because he has patience. I'm appointing him because I know him very well and he has no patience. Andthis is a case that needs someone that isn't going to put up with the garbage thatthis Court has beenpresented with, with frivolous motions and all ofthe procedural background. Report ofProceedings (RP) (Oct. 3,2014) at 14. Soon after the October 3, 2014 hearing, the Honns discovered that in 2009, Mr. Esser left the predecessor firm ofLibey & Ensley. Libey & Ensley represented the Garretts in the current matter. In addition, Gary Libey, ofLibey & Ensley, draftedthe lease at issue. On October 14,2014, the Honns moved for reconsideration ofthe appointment of Mr. Esser as the third neutral arbitrator, and also moved to disqualify Libey & Ensley from representing the Garretts. Judge Frazierpresided overboth motions on October 24,

4No. 33 

### I75-0-III GarrettRanches v. LarryHonn Family
2014. Judge Frazier denied the motionto disqualifY Libey & Ensley, since the evidence the Honns sought from Mr. Libey was obtainable through other sources. Judge Frazier also noted that it was highly unlikely Mr. Libey would be called as a witness since there
was a high possibility "[the] case is goingto getthrown out ofarbitration ifthe law is applied," and "Ithinkthe issue's resjudicatahere." RP (Oct. 24, 2014) at 22-23. As for the motion to reconsiderthe appointment ofMr. Esser, Judge Frazier noted that although he was uncertain thatthe party arbitrators were deadlocked, they had not selected athird neutral arbitrator by the deadline. He did not envision a conflict based on Mr. Esser serving as the third neutral arbitrator, because since the time the partnership between Mr. Esser and Mr. Libey ended, both attorneys had represented opposing sides and "hadpretty good knock-down, drag-out fights" in Judge Frazier's courtroom. RP (Oct. 24, 2014) at 26. However, Judge Frazier nominated three alternatives in the eventMr. Esser decided to recuse himselffrom the arbitration. Mr. Esser officially became the nonparty arbitrator on October 17,2014. In early November 2014, Mr. Esser madethe following mandatory arbitrator disclosures: I know ofno facts which would affect my impartiality. I have never had contact in any manner with eitherthe Garretts orMr. & Mrs. Larry Honn. As you know, I was partners for many years with Mr. Libey. And during thattime, approximately eight years ago, I represented Larry Honn, 

### 5No. 33175-0-111 GarrettRanches v. LarryBonnFamily
Jr. on a personal matter, it had nothing to do with his family"s business interests. CP at 222. In mid-November 2014, the Honns" counsel sent a letter to Mr. Esserthat requested he step down as the nonparty arbitrator because "[i]thas come to my attention by way ofan affidavit thatyou and 

### Mr. Libey may still have an ongoing friendship which could influence your decisions in the pending arbitration." CP at 224. The affidavit, from an individual not involved in the litigation, stated "I observed

### Mr. Libey and Mr. Esserwalking down the street together," and "I see them, along w/Judge Fraiser [sic], regularly frequenting the local restaurants." CP at 225. 

### Mr. Esserrefused to recuse himselfas the nonparty arbitrator. The arbitrationpanel issued an award in favor ofthe Garretts onJanuary 23, 2015. 1 Mr. Esser authored the arbitration award. The Garretts' arbitratorjoinedwith Mr. Esser, and the Honns' arbitrator wrote a dissent. The arbitration award concludedthat "[t]he Garretts may proceed with theirpurchase ofthe property for the cash price set forth


## .. in theirLease/Option Agreement and upon the terms set forth in the second arbitration award." CP at 146. Concerning consideration for the option, the award stated ''wehave

1The Honns' arbitration summaryjudgmenttheory was that they were entitled to withdraw the option before itwas accepted, as it contained no independent consideration. The Garretts' arbitration summaryjudgmenttheory was that resjudicatabarred the Honns' action, and even ifit did not, the mutual promises, rights, and obligations 6

### No. 33175-0-111 GarrettRanches v. LarryHonn Family multiple promises relating to the lease and to the option which combined equal one, integrated contract. Contrary to the Honns' argument, Garretts did give consideration for the option, and they exercised the option consistent with the terms ofthe parties' agreement." CP at 

### 143. The award also indicated that resjudicata applied as "[t]he Honns could have and should have raised their consideration argument atthe earlier arbitrations." CP at 

### 145. The Garretts moved the trial court to have the arbitration award confirmed, while the Honns sought to have the award vacated. The Honns argued that the award should be vacated because Mr. Esser was not neutral, violated the appearance offairness doctrine, failed to consider evidence in support ofthe Honns' position, and misapplied Washington law. Atthe same time, the Honns moved to disqualifY Judge Frazierunderthe appearance offairness doctrine, arguing that he was biased against the Honns, impermissibly commented onthe evidence during a priorhearing by suggestingres judicatawould end the arbitration quickly, and helped stackthe arbitration panel against them. The Honns submitted the same affidavit that they unsuccessfully used in the attempt to getMr. Esser to recuse himselfas the nonparty arbitrator. Although the
contained in the lease served as consideration for the option. 

### 7No. 33 1 75-0-III GarrettRanches v. LarryHonn Family
affidavit claimed that Judge Frazier frequents restaurants with Mr. Libey and Mr. Esser, Judge Frazier said that the affiant "bettercheck her facts here because there is a lot of inaccuracies with respectto that." 

### RP (Feb. 13,2015) at 38-39. Judge Frazier explained that he has had lunch with Mr. Libey before, but it is common in the legal community for judges to have meals with lawyers, especially in small communities like Whitman County. In fact, the very same day as the hearing, Judge Frazierwas having lunch with a group oflawyers, and Mr. Libey came into the restaurant to talkto a retiredjudge. Judge Frazier denied the Honns' motion to recuse himselfand confirmed the arbitration award. The Honns appeal. ANALYSIS Chapter 7.04A RCW contains Washington's version ofthe uniform arbitration act (UAA). As an alternative form ofdispute resolution, mandatory arbitration substitutes for litigation. See Godfrey v. Hartford Cas. Ins. Co., 142 Wn.2d 885,891-92,16 P.3d 617 (2001). "Arbitration is attractive because it is a more expeditious and final alternative to litigation." Boydv. Davis, 127 Wn.2d 256, 262, 897 P.2d 1239 (1995). Arbitration is supposed to "avoidthe formalities, the expense, and the delays ofthe court system." Perez v. Mid-CenturyIns. Co., 85 Wn. App. 760, 766, 934 P.2d 731 (1997). "But, arbitration can substitute for litigation only ifwe have confidence in the ability ofthe
8No. 33175-0-II1 GarrettRanches v. LarryHonn Family
arbitrators to make fair, unbiased decisions." Rodriguez v. Windermere RealEstate/Wall St., Inc., 142 Wn. App. 833, 841, 175 P.3d 604 (2008). "The choice ofarbitrators has serious implications because'arbitrators are, when acting under unlimited authority,
... finaljudges ofboth the law and the facts, and
... no review will lie for a mistake in either.'" Rodriguez, 142 Wn. App. at 841 (internal quotation marks omitted) (quotingDep 't of Soc. & Health Servs. v. State Pers. Bd., 61 Wn. App. 778, 785, 812 P.2d 500 (1991)). Consequently, RCW 7.04A.1IO(2) provides that "[a]n arbitrator who has a known, direct, and material interest in the outcome ofthe arbitrationproceeding ora known, existing, and substantial relationship with a party may not serve as a neutral arbitrator." Freedom ofcontract allows parties to choose the method used to appoint the arbitrator(s). Underthe tripartite arbitration process, "eachparty designates one arbitrator, and these two party arbitrators then agree on a third arbitrator who is presumably neutral." Perez, 85 Wn. App. at 766. Although "[i]t is widely acknowledged that the party arbitrators serving on a tripartite panel may not be completely neutral," the third arbitrator must be neutral. Id.

9No. 3317S-0-III GarrettRanches v. LarryHonn Family
1. Whether the trial court erred in appointing the nonparty arbitrator The Honns argue that the trial court erred when it appointed the nonparty arbitrator because there was insufficient evidence that theparties' method for choosing the arbitratorhad failed. RCW 7.04A.ll0(1) provides in relevantpart: Iftheparties to an agreement to arbitrate agree on a method for appointing 

### an arbitrator, that methodmustbe followed, unless the method fails. If
... the agreed method fails,
...the court, on motion ofa party to the arbitration proceeding, shall appointthe arbitrator. The Honns argue that we should apply de novo review to whether the trial court properly applied RCW 7.04A.110(1) to the facts presented. They argue that de novo review is appropriate where the record below is in written form because thereviewing court is in as good ofa position as the trial court to make the proper determination. The Garretts agree, andnote that de novo review applies to a trial court's decision on a motion to compel arbitration. We disagree, andtake this opportunity to clarify when de novo review is, and is not, the appropriate standard whenreviewing a trial court's decision basedwholly on documentary evidence. We recently held: Appellate courts generally review a superior court's findings offact for substantial evidence. This is true even where the trial court's findings are based entirely on documentary evidence, provided that the trial court was called on to reconcile conflicting evidence. However,
10No. 33 I75-0-III GarrettRanches v. LarryHonn Family
"where
...the trial courthas not seen norheard testimony requiring it to assess the credibility or competency ofwitnesses, and to weigh the evidence, nor reconcile conflicting evidence, then on appeal a court of review stands in the sameposition as the trial court in looking at the facts of the case and should review the record de novo." Goodeillv. Madison RealEstate,
_ Wn. App. _, 362 P.3d 302,306 (2015) (quoting State v. Kipp, 179 Wn.2d 718, 727, 317 P.3d 1029 (2014)). Here, a substantial evidence standard ofreview is appropriate because the trial court was required to weigh evidence in determining whetherthe party arbitrators were unable to select the nonparty arbitrator. Intheir motion for the trial courtto appoint Mr. Blankenship as the nonparty arbitrator, the Garretts argued that the arbitrators could not agree onthe nonparty arbitrator because their arbitrator thought Mr. Blankenship should be appointed, whereas the Honns' arbitrator wanted to appoint Brian Balch. The Honns disagreed, and argued that both arbitrators were still working toward appointing a third arbitrator. The trial court was uncertain whetherthe arbitrators were at an impasse and, therefore, gave them two additional weeks. Impliedly, the trial court found that ifthe arbitrators still could not agree on a nonparty arbitrator after two additional weeks, then they truly were at an impasse. Substantial evidence is defined as that quantum ofevidence sufficient to persuade
a rational fair-minded person the premise is true. McCleary v. State, 173 Wn.2d 477,


### 11No. 33 1 75-0-III GarrettRanches v. LarryHonn Family 514,269 P.3d 227 (2012) (quoting Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003)). Here, a rational fair-minded person could be persuaded that the arbitrators were at an impasse given their disagreement on who should be the third arbitratorandtheir inability to agree aftertwo additional weeks. We therefore conclude that substantial evidence supports the trial court's finding that the party arbitrators could not agree on a third arbitrator, and that the agreed method for selecting the third arbitrator had failed. Consequently, because RCW 7.04A.IlO(1) authorized the trial courtto select an arbitrator ifthe parties' agreed method failed, the trial court did not
err in selecting an arbitrator. 2. Whether the trial courterred in confirming the arbitration awarcP The Honns argue that the trial court erred in denying their motion to vacate the arbitration award because the nonparty arbitrator was biased, and also failed to make the necessary mandatory disclosures. Theparty challenging the arbitration award has the burden ofshowing grounds for vacating the award. Hanson 

### v. Shim, 87 Wn. App. 538, 546-47,943 P.2d 322 (1997). Review ofan arbitrator's conduct for evidentpartiality,

2The Honns' assign error both to the trial court's denial oftheir motion for reconsideration ofthe appointment ofMr. Esser and the trial court's denial oftheir motion to vacate the arbitration award. Because the Honns' arguments relating to the former assigned error are subsumed in their arguments relating to the latter assigned error, we address the latter only. 12No. 33175-0-II1 GarrettRanches v. LarryHonn Family along with compliance withthe statutory arbitrator disclosures, is a question oflaw that courts review de novo. See S&S Constr., Inc. v. ADCProps., LLC, 151 Wn. App. 247, 258-60,211 P.3d 415 (2009). Thetrial court mustvacate an arbitration award ifit determinedthere is "[e]vident partiality by an arbitrator appointed as a neutral." RCW 7.04A.230(1)(b)(i). In addition,
an arbitrator's failure to make a mandatory arbitrator disclosure under RCW 7.04A.120 is grounds to vacate an arbitration award. A. Evidentpartiality Washington's UAA does not define "evidentpartiality." '" Evidentpartiality', like obscenity, is an elusive concept: one knows itwhen one sees it, but it is awfully difficult to define in exact terms.'" Schreifels v. Safeco Ins. Co., 45 Wn. App. 442, 445, 725 P.2d 1022 (1986) (quotingInt'lBhd. ofElec. Workers, Local

### 323 v. CoralElec. Corp., 104 F.R.D. 88, 89 (S.D. Fla. 1985)). Evidentpartiality exists where the arbitrator has an actual conflict ofinterest. See S&S Constr., 151 Wn. App. at 258-59. However, an arbitrator's prior employment 25 years earlier with a predecessor law firm, accompanied with an appropriate disclosure, is "fartoo remote, and commonplace to be considered a conflict." Id. at 259.

13No. 33I75-0-III GarrettRanches 

### v. LarryHonn Family Although the Honns argue that thejudicial appearance offairness doctrine applies to arbitrators, "[t]he goals ofthe arbitration process would notbe served ifarbitrators and judges were held to the same high standard." Perez, 85 Wn. App. at 766. Ifthe arbitrator discloses any potential cont1icts, the mere appearance ofimpropriety is not enough to establish evidentpartiality. '" To vacate an arbitration award where nothing more than an appearance ofbias is alleged wouldbe "automaticallyto disqualifY the best informed and most capable potential arbitrators."'" S&S Constr., 151 Wn. App. at 2?9 n.l3 (quoting Int'/Produce, Inc. v. AISRosshavet, 638 F.2d 548,552 (2d Cir. 1981)). Here, Mr. Esserhad previously been a partner ofthe predecessor firm to Libey & Ensley, the firm that representedthe Garretts in the arbitration. Mr. Esser's association with the firm endedroughly five years before he was appointed as the nonparty arbitrator. Takingthe safe route, Mr. Esser disclosed his priorpartnership with Mr. Libey. The record does not indicate thatMr. Esser and attorneys from Libey & Ensley recently served
as co-counsel on other matters orreferred cases to each other. Tothe contrary, Judge Frazierindicated that since the time the partnership dissolved, Mr. Esser and Mr. Libey have "hadpretty goodknock-down, drag-out fights and it hasn't affectedtheir ability to advocate against one another very zealously." RP (Oct. 24,2014) at 26. Mr. Esser's priormembership in Libey & Ensley does notpresent an actual conflict and, therefore,
14No. 33175-0-111 GarrettRanches v. LarryHonn Family
does not establish evident partiality. Such a relationship, especially in a rural community, is far too commonplace to be considered an actual conflict for an ethical arbitrator. See S&S Constr., 151 Wn. App. at 259. B. Nondisclosure ofsocial relationship The Honns also argue that Mr. Esser failed to disclose his continuing social relationship with Mr. Libey. In order to prevent an arbitrator from serving when a conflict is present, RCW 7.04A.120 requires certain mandatory arbitrator disclosures. Under RCW 7.04A.120(1), the arbitrator must disclose "known facts that a reasonable person would consider likely to affect the impartiality ofthe arbitrator in the arbitration proceeding." These include a "financial or personal interest in the outcome ofthe arbitration proceeding," and an "existing or past relationship with any ofthe parties [or] their counselorrepresentatives." RCW 7.04A.l20(1)(a), (b). Under the case law'" [nlot every relationship is a disclosable relationship.'" Hanson, 87 Wn. App. at 547 (quoting St. PaulIns. Cos. v. Lusis, 6 Wn. App. 205, 209, 492 P.2d 575 (1971)). "A general duty to disclose exists when the relationship or circumstance creates a reasonable inference ofthe presence ofbias orthe absence of impartiality." Id. This inference exists "when an arbitrator has had a relatively recent association with a law firm representing a party and a continuing relationship with the
15No. 33175·0·111 GarrettRanches 

### v. LarryHonn Family
finn on other matters." Id. (citingLusis, 6 Wn. App. at 213 ("Relatively recent, although prior, professional association with counsel for one ofthe parties as a member ofthe
same law finn, at least when coupled with a continuing and present 'co-counsel' arrangement on other matters, is a necessarily disclosable circumstance.")). However, "[j]ust as a given circumstance orrelationship may be too trivial to require disclosure, so also open declaration orpublic knowledge ofthe circumstance or relationship mightbe such as to negate the necessity to disclose." Lusis, 6 Wn. App. at 214. InHanson, Division Oneheld thatthe arbitrator didnotneedto disclose that approximately 20 years ago, the arbitrator was an associate ofthe law finn representing a party. Hanson, 87 Wn. App. at 546·48. Further, theHanson courtnotedthatprejudice
was not shown from the nondisclosure becausetheparty "d[id] not claim thattheprior association had any actual impact on the award; rather it argue[d] that the nondisclosure Ifmited its right to choose a neutral arbitrator." Id. at 548. Similarly, inLusis, Division Two held that an arbitrator did not need to disclose that he was on the board ofthe Washington State Trial Lawyers Association with a party's attorney. Lusis, 6 Wn. App. at 215. The appellant argued prejudice based on the "undisclosedpersonal andprofessional relationships," despite the fact that the arbitrator andthe other side's attorney hadneverpracticedtogether and were commonly
16No. 33175-0-111 GarrettRanches v. LarryHonn Family
adversaries. Id. at 206-07. The court concluded thatthe relationship did notneedto be disclosed, as itwas reasonable for the arbitratorto assume that the parties knew ofthe connection based on the membership ofthe Washington State Trial Lawyers Association beingpublicly listed. Id. at 214-15. Even ifthe affidavit claiming that Mr. Esser, Mr. Libey, and Judge Frazier frequent restaurants togetherwas reliable, Mr. Esserwas under no obligation to disclose a fact that was allegedly public knowledge. See id. Moreover, the Honns have not establishedthat any allegedpartiality or failure to disclose by Mr. Esserprejudicedthem by impactingthe arbitration award. See S&S Constr., 151 Wn. App. at 259 (the proponent must "show prejudice resulting from those relationships"); see also Hanson, 87 Wn. App. at 548 (prejudice is established only ifit is shown that the award was affected). Prior professional, and even current, social relationships between attorneys in a small community do not equate arbitratorpartiality oran unwillingness ofan attorney to advocate for a client. As Judge Frazier noted, Mr. Esser and Mr. Libey "hadpretty good knock-down, drag-out fights" in his courtroom prior to the arbitration at issue. RP (Oct. 24,2014) at 26.

17No. 33175-0-III GarrettRanches v. LarryHonn Family
In sum, neither Mr. Esser's disclosed prior membership in Libey & Ensley nor Mr. Esser's undisclosed social relationship with Mr. Libey establish a sufficientbasis for vacating the arbitration award. 3. Whether obvious error exists in the arbitration award The standards ofreviewing arbitration awards are well-stated in S&S Construction: Washington public policy strongly favors finality ofarbitration awards. Judicial review ofarbitration awards is strictly limited to the grounds set forth by the Washington uniform arbitration act, chapter 7.04A RCW. Similarly, appellate review ofarbitration proceedings is restricted to grounds identified in the act. An appellate court limits review ofan arbitrator's award to that ofthe court that confirmed, vacated, modified, or corrected that award. S&S Constr., 151 Wn. App. at 254 (citations omitted). This court reviews a trial court's decision to confirm or vacate an arbitration award de novo. See Salewski v. Pilchuck Veterinary Hosp., Inc., 189 Wn. App. 898,903-04, 359 P.3d 884 (2015). The Honns argue that the trial court should have vacated the award because it was contrary to law, in that material facts precluded summary dismissal ofthe lack of consideration issue, and resjudicata should not apply because they timely asserted the consideration issue once the Garretts attempted to exercise the option to purchase.

18No. 33175-0-III GarrettRanches v. LarryHonn Family
In Broom v. Morgan StanleyDW, Inc., 169 Wn.2d 231,237, 236 PJd 182 (2010), the court held that former RCW 7.04.160(4) (l943? authorized a reviewing courtto vacate an award for a facial legal error. FormerRCW 7.04.160(4) allowed an award to be vacated "[ w]here the arbitrators exceededtheir powers, or so imperfectly executedthem that a final and definite award upon the subject matter submitted to them was notmade." In holding that this subsection allowed vacatur for facial legal errors, it emphasized that the legislature had not sought to amendthe statute despite knowing ofits historical judicial construction. Id. at 238. We note thatthe statute has since been amended, and its currentprovision more narrowlyprovides: "Upon motion ofa party to the arbitration proceeding, the court shall vacate an award if
... [a]n arbitrator exceeded the arbitrator's powers." RCW 7.04A.230(1). The current statute omits "or so imperfectly executed
. themthat a final and definite award upon the subject matter submitted was not made." The omission ofthe broader language may have been intentionally done to encourage arbitrators to provide reasoned written explanations for their awards, without concomitant
concern thatreviewing courts would vacate them. Theparties have notbriefedthe continued viability ofthe rule that allows review offacial legal errors, so we do not further address the issue, and assume without deciding, thattherule remains viable. !
3Repealed by the LAWS OF 2005, ch. 433, 

### § 50 (eff. Jan. 1,2006). 19

### No. 33175-0-III GarrettRanches v. LarryHonn Family


### The facial legal error standard is a "very narrow ground for vacating an arbitral award," furthering the "purposes ofarbitration" while preventing "obvious legal error." Broom, 

### 169 Wn.2d at 239. "[C]ourts may not search the arbitral proceedings for any 

### legal error; courts do not look to the merits ofthe case, and they do not reexamine evidence." Id. 

### Therefore, "[r]arely is it possible to have an arbitration award vacated for [obvious] error oflaw on the face ofthe award." Cummings 

### v. Budget TankRemoval & Envtl. Servs., LLC, 

### 163 Wn. App. 379,382,260 P.3d 220 (2011). The classic example of
an obvious legal error is '" where the arbitrator identifies aportion ofthe award as punitive damages in ajurisdiction that does not allow punitive damages.'" Id. 

### at 389 (quoting Fed. Servs. Ins. Co. v. Pers. Representative of Estate of Norberg, 

### 101 Wn. App. 119, 124, 4 P.3d 844 (2000)). Here, Mr. Esser authored an eight-page arbitration decision that awarded the Garretts the right to enforce the option topurchase the Honns' property. When reviewing for obvious legal error, it is proper for us to review the written arbitration decision itself. See id. 

### ("Where a final award sets forth the arbitrator's reasoning along withthe actual dollar amounts awarded, any issue oflaw evident in the reasoning may also be considered
as part ofthe face ofthe award.").

20No. 33175-0-II1 GarrettRanches v. LarryHonn Family
The eight-page award granted summaryjudgmentto the Garretts based on (1) mutual promises in the lease constituting consideration for the option to purchase, and (2) resjudicata as the Honns should have raised their consideration argument at the earlier arbitrations. Mr. Esser's award does not contain any obvious legal errors. His conclusion that the mutual promises in the lease constitute consideration for the option is not an obvious error oflaw. See Valley Garage, Inc. v. Nyseth, 4 Wn. App. 316, 318-20,481 P.2d 17 (1971). Moreover, contrary to what the Honns argue on appeal, and as 

### Mr. Esser's award reasoned, resjudicatabars affirmative defenses. See Symington v. Hudson, 40 Wn.2d 331, 338,243 P.2d 484 (1952) ("[W]here aparty has had a full and fair opportunity to make all ofthe defenses at his command, and he elects not to disclose his claim
...the doctrine ofresjudicata applies and he cannot later assert it."). Consequently, there is no obvious legal error, and the trial court did not err in confirming the award issued by the arbitration panel. 4. Whether the trial court erred in not recusing itself The Honns also argue that Judge Frazier should have recused himself, and that he violated the appearance offairness doctrine. "Washington's appearance offairness

4The Honns assign error both to the trial court's appointment ofMr. Esser, and Judge Frazier's refusal to recuse himself. Because both assigned errors depend on the same facts and the appearance offairness doctrine, we address the latter only. 21No. 33175-0-111 GarrettRanches 

### v. LarryHonn Family
doctrine not only requires ajudgeto be impartial, it also requires that thejudge appearto be impartial." Tatham v. Rogers, 170 Wn. App. 76, 80, 283 P.3d 583 (2012). In the same vein, the Code ofJudicial Conduct (CJC) requires "[a]judge shall disqualify himselfor herselfin any proceeding in which thejudge's impartiality might reasonably be questioned." CJC Rule 2.11(A) (asterisk omitted). The issue for ajudge in considering whether the appearance of fairness doctrine may be orhas been violated is not whether he or she personally and in good faith views a family relationship, for example, or a financial interest, or a fiduciary relationship, to be oflittle significance. It is whether, in light ofthe relationship, a reasonably prudent and disinterested person would conclude that all parties can or did obtain a fair, impartial, and neutral hearing. Tatham, 170 Wn. App. at 104. The burden ofestablishing an appearance offairness violation is on the proponent, who must "provide sufficient evidence to overcome the presumption that the trial court performed its functions without bias orprejudice." State 

### v. Witherspoon, 171 Wn. App. 271,289,286P.3d 996 (2012), affd, 180 Wn.2d 875, 329 P.3d 888 (2014). "The party must produce sufficient evidence demonstrating actual orpotential bias, such as personal
orpecuniary interest on the part ofthejudge; mere speculation is not enough." 

### Kokv. Tacoma Sch. Dist. No. 10, 179 Wn. App. 10,24,317 P.3d 481 (2013), review denied, 180 Wn.2d 1016,327 P.3d 55 (2014). This courtreviews a trialjudge's recusal decision for
22No. 33 I75-0-II1 GarrettRanches v. LarryHonn Family
abuse ofdiscretion-whether "the decision was manifestly unreasonable or based on untenable reasons or grounds." Id. at 23-24. A. Social relationship between opposing counsel andjudge Itmay be ill advised for ajudgeto eat lunch with an attorney who currently has a
case in front ofthejudge, but a reasonable person would not question thejudge's impartiality when there is no evidence that the case was discussed. See Smith v. Behr Process Corp., 113 Wn. App. 306, 340-41, 54 P.3d 665 (2002) (no violation of appearance offairness doctrine whenjudge inadvertently had dinner with two named members ofa class action lawsuit and "neitherthejudgenorthe [two class members] discussed the case"). A personal relationship between thejudgeand an attorney in a case, standing alone, is not enough to warrant recusal. See Tatham, 170 Wn. App. at 103-04;
see also Kok, 179 Wn. App. at 25. Here, the Honns submitted an affidavit that implies Judge Frazier, Mr. Libey, and Mr. Esser eat lunch together almost every day. However, Judge Frazier stated on the record that the affiant "bettercheck her facts." RP (Feb. 13,2015) at 38. Judge Frazier admitted to having lunchwith Mr. Libeybefore, but pointed out that lawyers andjudges sometimes eatmeals together. Itis an unavoidable fact oflitigation, especially in rural communities, that ajudge is a member ofthe legal community and may have ongoing
23No. 33175-0-111 GarrettRanches v. LarryHonn Family
social relationships with attorneys coming before the court. Given the paucity of evidence that Judge Frazierhad any greater ofa social relationship with Mr. Libey than he had with other attorneys, and the absence ofevidence that Judge Frazier and Mr. Libey discussed the pending case, we hold that Judge Frazier did not abuse his discretion in denying the Honns' motion that he recuse himselfon this basis. B. Comments concerning case viability The Honns also argue that Judge Frazierviolated the appearance offairness doctrine by commenting that the arbitration should be dismissed quickly ifresjudicata is applied. Although a violation ofthe appearance offairness doctrine may be present when the trialjudge impermissibly comments on the evidence or case, such comments are harmless when they are not conveyed to the finder offact. See Hickok-Knight v. WalMart Stores, Inc., 170 Wn. App. 279, 318-20, 284 P.3d 749 (2012). First, the Honns take Judge Frazier's comment out ofcontext to make it sound like he originated the resjudicata idea. Instead, the Garretts, in their motion to have Mr. Blankenship appointed the neutral arbitrator, raised the defense ofresjudicata as a basis for having a person knowledgeable about the case history appointed. Further, Judge Frazier's comment that resjudicatawould likely dispose ofthe arbitration was made to explain his decision to not disqualify Mr. Libey, since dismissal on that summarybasis
24No. 33175-0-111 GarrettRanches v. LarryHonn Family
would make Mr. Libey'stestimony unnecessary. Moreover, Judge Frazier'sresjudicata comment was not communicated to a trier offact, and thus the Honns were not prejudiced. See id. at 320. The Honns have failed to produce sufficient evidence to establish a violation ofthe appearance offairness doctrine, as "mere speculation is not enough." Kok, 179 Wn. App. at 24. Despite the Honns' assertions ofprejudice,**~~a** reasonably prudent and disinterested person would conclude that all parties received a fair, impartial, and neutral hearing." Id. at 23. Judge Frazier's decision not to recuse himselfwas not manifestly unreasonable or based on untenable grounds. See id. at 23-24. 5. Whether the Garretts shouldbe awardedreasonable attorney foes on appeal On appeal, the Garretts request an award ofreasonable attorney fees pursuant to RAP 18.1 and a provision in the farm lease. Paragraph 16 ofthe farm lease provides: 16. Litigation: In the event either or bothparties shall be reasonably required to retain an attorney to enforce any ofthe provisions ofthis Lease, the prevailing party in any such enforcementproceedings shall have awarded to them attorney's fees and costs to the extent reasonably incurred, in addition to such otherreliefas exists underthe provisions ofthis Lease orby operation oflaw. Venue shall be in Whitman County, Washington. CP at 317. Under RCW 4.84.330, the prevailingparty is entitled to attorney fees for actions on a lease, ifthe lease provides for attorney fees. A party may request reasonable attorney fees on appeal under RAP 18.1. "Acontractual attorney fee provision authorizes 25No. 33175-0-III Garrett Ranches v. LarryHonn Family

an award offees to the prevailing party on appeal." Kenneth W. Brooks TrustA.v. Pac. Media, LLC, 111 Wn. App. 393,401,44P.3d 938 (2002). The Garretts are theprevailing party on appeal. We therefore award them their reasonable attorney fees, subjectto their compliance with RAP 18.1. Affirmed. A majority ofthe panel has determined this opinionwill notbe printed in the Washington Appellate Reports, but it will be filed for public recordpursuant to RCW 2.06.040. Lawrence-Berrey, J. 

## j WE CONCUR:

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