FILED 

February 25, 2016 

In the Office of the Clerk of Court 

W A State Cou~ of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


GARRETT RANCHES LLC, a . ) No. 3317S-0-III 

Washington Limited Liability Company, ) 


) 


Respondent, ) 


) 


v. ) UNPUBLISHED OPINION 

) 

LARRY HONN FAMILY LLC, a ) 

Washington Limited Liability Company, ) 

) 


Appellant. ) 


LAWRENCE-BERREY, J. - The Larry Honn Family, LLC (the Honns) appeal the 

trial court's confinnation of an arbitration award in favor of Garrett Ranches, LLC (the 

Garretts). The Honns argue (1) the trial court erred when it appointed the nonparty 

arbitrator because the Garretts failed to establish that the parties' agreed method for 

appointing an arbitrator had failed, (2) the trial court erred in not vacating the arbitration 

award, given the prior professional and current social relationships between the nonparty 

arbitrator and the Garretts' counsel, (3) the trial court erred in not vacating the arbitration 

award for obvious error, and (4) the trial court erred in not recusing itself. We disagree 
No. 33175-0-III 

Garrett Ranches v. Larry Honn 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 of the 

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. Under the terms of the 

lease: 

15. Arbitration: In the event any dispute shall arise between the 

parties, or with respect to this Lease, then and in that event the 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 of their 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 after the lease was entered, the Honns and the Garretts began to dispute its 

validity and terms. The matter was submitted to arbitration in 2010, where the arbitrators 

determined that both the lease and option were valid and enforceable. The matter was 

again submitted to arbitration in 2011, as the parties could not agree to the terms of the 

sale pursuant to the option. In an unpublished 2013 case, this court affirmed the trial 

2 

No. 33175-0-111 

Garrett Ranches v. Larry Bonn Family 

court orders confirming the arbitration awards in favor of the Garretts. See Garrett 

Ranches LLC v. Larry Bonn Family LLC, noted at 177 Wn. App. 1014,2013 WL 

5658373. In the first two rounds of arbitration, Read Smith served as the Garretts' party 

arbitrator, David Gittins was the Honns' party arbitrator, and Dwayne Blankenship was 

the nonparty arbitrator. 

This appeal stems from a further round of arbitration between the Honns and the 

Garretts. The subject of this round was whether the option to purchase was unenforceable 

for lack of consideration. Mr. Smith remained the Garretts' party arbitrator, but the 

Honns chose a new party arbitrator, Frank Gebhardt. 

On September 25,2014, the Garretts filed a motion with the trial court requesting 

that it appoint Dwayne Blankenship, the nonparty arbitrator in the prior 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 of the nonparty 

arbitrator. Attached to the declaration were e-mails where the Garretts' counsel told the 

Honns' counsel: "I am under the impression that our two arbitrators have not chosen a 

third arbitrator because of confusion on the issue." CP at 11. In the chain of response emails, the Honns' counsel did not deny a deadlock, but rather the two attorneys began to 

argue regarding Mr. Blankenship's qualifications. In response to the Garretts' motion, 

3 

No. 33175-0-111 

Garrett Ranches v. Larry Honn 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 David Frazier presided over the October 3, 2014, motion hearing. 

Instead of appointing 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 of Mr. 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. And this is a 

case that needs someone that isn't going to put up with the garbage that this 

Court has been presented with, with frivolous motions and all of the 

procedural background. 

Report of Proceedings (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 of Libey & Ensley. Libey & Ensley represented the 

Garretts in the current matter. In addition, Gary Libey, of Libey & Ensley, drafted the 

lease at issue. 

On October 14,2014, the Honns moved for reconsideration of the appointment of 

Mr. Esser as the third neutral arbitrator, and also moved to disqualify Libey & Ensley 

from representing the Garretts. Judge Frazier presided over both motions on October 24, 

4 

No. 33 I 75-0-III 

Garrett Ranches v. Larry Honn Family 

2014. Judge Frazier denied the motion to 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 going to get thrown out of arbitration if the law is 

applied," and "I think the issue's res judicata here." RP (Oct. 24, 2014) at 22-23. 

As for the motion to reconsider the appointment ofMr. Esser, Judge Frazier noted 

that although he was uncertain that the party arbitrators were deadlocked, they had not 

selected a third 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 "had pretty 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 

event Mr. Esser decided to recuse himself from the arbitration. Mr. Esser officially 

became the nonparty arbitrator on October 17,2014. 

In early November 2014, Mr. Esser made the following mandatory arbitrator 

disclosures: 

I know of no facts which would affect my impartiality. I have never 

had contact in any manner with either the Garretts or Mr. & Mrs. Larry 

Honn. As you know, I was partners for many years with Mr. Libey. And 

during that time, approximately eight years ago, I represented Larry Honn, 

5 
No. 33175-0-111 

Garrett Ranches v. Larry Bonn Family 

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. Esser that 

requested he step down as the nonparty arbitrator because "[i]t has come to my attention 

by way of an affidavit that you 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. 

Esser walking down the street together," and "I see them, along w/Judge Fraiser [sic], 

regularly frequenting the local restaurants." CP at 225. Mr. Esser refused to recuse 

himself as the nonparty arbitrator. 

The arbitration panel issued an award in favor of the Garretts on January 23, 

2015. 1 Mr. Esser authored the arbitration award. The Garretts' arbitrator joined with Mr. 

Esser, and the Honns' arbitrator wrote a dissent. The arbitration award concluded that 

"[t]he Garretts may proceed with their purchase of the property for the cash price set forth .. 

in their Lease/Option Agreement and upon the terms set forth in the second arbitration 

award." CP at 146. Concerning consideration for the option, the award stated ''we have 

1 The Honns' arbitration summary judgment theory was that they were entitled to 

withdraw the option before it was accepted, as it contained no independent consideration. 

The Garretts' arbitration summary judgment theory was that res judicata barred the 

Honns' action, and even if it did not, the mutual promises, rights, and obligations 

6 

No. 33175-0-111 

Garrett Ranches v. Larry Honn 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 res judicata applied as "[t]he 

Honns could have and should have raised their consideration argument at the 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 of fairness doctrine, 

failed to consider evidence in support ofthe Honns' position, and misapplied Washington 

law. At the same time, the Honns moved to disqualifY Judge Frazier under the 

appearance of fairness doctrine, arguing that he was biased against the Honns, 

impermissibly commented on the evidence during a prior hearing by suggesting res 

judicata would end the arbitration quickly, and helped stack the arbitration panel against 

them. 

The Honns submitted the same affidavit that they unsuccessfully used in the 

attempt to get Mr. Esser to recuse himself as the nonparty arbitrator. Although the 

contained in the lease served as consideration for the option. 

7 
No. 33 1 75-0-III 

Garrett Ranches v. Larry Honn Family 

affidavit claimed that Judge Frazier frequents restaurants with Mr. Libey and Mr. Esser, 

Judge Frazier said that the affiant "better check her facts here because there is a lot of 

inaccuracies with respect to 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 Frazier was having lunch with a 

group oflawyers, and Mr. Libey came into the restaurant to talk to a retired judge. Judge 

Frazier denied the Honns' motion to recuse himself and 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 of dispute 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." Boyd v. Davis, 127 Wn.2d 256, 262, 897 P.2d 1239 (1995). Arbitration is 

supposed to "avoid the formalities, the expense, and the delays ofthe court system." 

Perez v. Mid-Century Ins. 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 

8 

No. 33175-0-II1 

Garrett Ranches v. Larry Honn Family 

arbitrators to make fair, unbiased decisions." Rodriguez v. Windermere Real Estate/Wall 

St., Inc., 142 Wn. App. 833, 841, 175 P.3d 604 (2008). 

"The choice of arbitrators has serious implications because'arbitrators are, when 

acting under unlimited authority, ... final judges of both 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) (quoting Dep 't ofSoc. & 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 of the 

arbitration proceeding or a known, existing, and substantial relationship with a party may 

not serve as a neutral arbitrator." 

Freedom of contract allows parties to choose the method used to appoint the 

arbitrator(s). Under the tripartite arbitration process, "each party 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. 

9 

No. 3317S-0-III 

Garrett Ranches v. Larry Honn 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 the parties' method for choosing the 

arbitrator had failed. RCW 7.04A.ll0(1) provides in relevant part: 

If the parties to an agreement to arbitrate agree on a method for appointing 

an arbitrator, that method must be followed, unless the method fails. If ... 

the agreed method fails, ... the court, on motion of a party to the arbitration 

proceeding, shall appoint the arbitrator. 

The Honns argue that we should apply de novo review to whether the trial court 

properly applied RCW 7 .04A.11 0(1) to the facts presented. They argue that de novo 

review is appropriate where the record below is in written form because the reviewing 

court is in as good of a position as the trial court to make the proper determination. The 

Garretts agree, and note that de novo review applies to a trial court's decision on a motion 

to compel arbitration. We disagree, and take this opportunity to clarify when de novo 

review is, and is not, the appropriate standard when reviewing a trial court's decision 

based wholly on documentary evidence. 

We recently held: 

Appellate courts generally review a superior court's findings of fact 

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, 

10 

No. 33 I 75-0-III 

Garrett Ranches v. Larry Honn Family 

"where ... the trial court has not seen nor heard 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 same position as the trial court in looking at the facts of 

the case and should review the record de novo." 

Goodeill v. Madison Real Estate, _ 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 whether the party arbitrators were 

unable to select the nonparty arbitrator. In their motion for the trial court to appoint Mr. 

Blankenship as the nonparty arbitrator, the Garretts argued that the arbitrators could not 

agree on the 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 whether the 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 of evidence sufficient to persuade 

a rational fair-minded person the premise is true. McCleary v. State, 173 Wn.2d 477, 

11 

No. 33 1 75-0-III 

Garrett Ranches v. Larry Honn 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 arbitrator and their inability to agree after two 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 court to select an arbitrator ifthe parties' agreed method failed, the trial court did not 

err in selecting an arbitrator. 

2. Whether the trial court erred 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. The party challenging the arbitration award has the 

burden of showing grounds for vacating the award. Hanson v. Shim, 87 Wn. App. 538, 

546-47,943 P.2d 322 (1997). Review of an arbitrator's conduct for evident partiality, 

2 The Honns' assign error both to the trial court's denial of their motion for 

reconsideration of the appointment of Mr. Esser and the trial court's denial of their 

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. 

12 
No. 33175-0-II1 

Garrett Ranches v. Larry Honn Family 

along with compliance with the statutory arbitrator disclosures, is a question of law that 

courts review de novo. See S&S Constr., Inc. v. ADC Props., LLC, 151 Wn. App. 247, 

258-60,211 P.3d 415 (2009). 

The trial court must vacate an arbitration award if it determined there 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. Evident partiality 

Washington's UAA does not define "evident partiality." '" Evident partiality', like 

obscenity, is an elusive concept: one knows it when 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) (quoting Int'l Bhd. ofElec. Workers, Local 323 v. Coral Elec. Corp., 104 

F.R.D. 88, 89 (S.D. Fla. 1985)). Evident partiality exists where the arbitrator has an 

actual conflict of interest. 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 "far too remote, and commonplace to be considered a 

conflict." Id. at 259. 

13 

No. 33 I 75-0-III 

Garrett Ranches v. Larry Honn Family 

Although the Honns argue that the judicial appearance of fairness doctrine applies 

to arbitrators, "[t]he goals of the arbitration process would not be served if arbitrators and 

judges were held to the same high standard." Perez, 85 Wn. App. at 766. If the arbitrator 

discloses any potential cont1icts, the mere appearance of impropriety is not enough to 

establish evident partiality. '" To vacate an arbitration award where nothing more than an 

appearance of bias is alleged would be "automatically to 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. AIS Rosshavet, 638 F.2d 548,552 (2d Cir. 1981)). 

Here, Mr. Esser had previously been a partner of the predecessor firm to Libey & 

Ensley, the firm that represented the Garretts in the arbitration. Mr. Esser's association 

with the firm ended roughly five years before he was appointed as the nonparty arbitrator. 

Taking the safe route, Mr. Esser disclosed his prior partnership with Mr. Libey. The 

record does not indicate that Mr. Esser and attorneys from Libey & Ensley recently served 

as co-counsel on other matters or referred cases to each other. To the contrary, Judge 

Frazier indicated that since the time the partnership dissolved, Mr. Esser and Mr. Libey 

have "had pretty good knock-down, drag-out fights and it hasn't affected their ability to 

advocate against one another very zealously." RP (Oct. 24,2014) at 26. Mr. Esser's 

prior membership in Libey & Ensley does not present an actual conflict and, therefore, 

14 

No. 33175-0-111 

Garrett Ranches v. Larry Honn 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 of social 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 of the arbitrator in the arbitration 

proceeding." These include a "financial or personal interest in the outcome of the 

arbitration proceeding," and an "existing or past relationship with any of the parties [or] 

their counselor representatives." RCW 7.04A.l20(1)(a), (b). 

Under the case law'" [n lot every relationship is a disclosable relationship. '" 

Hanson, 87 Wn. App. at 547 (quoting St. Paul Ins. 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 of the presence of bias or the 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 

15 

No. 33175·0·111 

Garrett Ranches v. Larry Honn Family 

finn on other matters." Id. (citing Lusis, 6 Wn. App. at 213 ("Relatively recent, although 

prior, professional association with counsel for one of the 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 or relationship may be too trivial to require disclosure, so 

also open declaration or public knowledge of the circumstance or relationship might be 

such as to negate the necessity to disclose." Lusis, 6 Wn. App. at 214. 

In Hanson, Division One held that the arbitrator did not need to 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, the Hanson court noted that prejudice 

was not shown from the nondisclosure because the party "d[id] not claim that the prior 

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, in Lusis, Division Two held that an arbitrator did not need to disclose 

that he was on the board of the Washington State Trial Lawyers Association with a 

party's attorney. Lusis, 6 Wn. App. at 215. The appellant argued prejudice based on the 

"undisclosed personal and professional relationships," despite the fact that the arbitrator 

and the other side's attorney had never practiced together and were commonly 

16 
No. 33175-0-111 

Garrett Ranches v. Larry Honn Family 

adversaries. Id. at 206-07. The court concluded that the relationship did not need to be 

disclosed, as it was reasonable for the arbitrator to assume that the parties knew ofthe 

connection based on the membership ofthe Washington State Trial Lawyers Association 

being publicly listed. Id. at 214-15. 

Even ifthe affidavit claiming that Mr. Esser, Mr. Libey, and Judge Frazier 

frequent restaurants together was reliable, Mr. Esser was under no obligation to disclose a 

fact that was allegedly public knowledge. See id. Moreover, the Honns have not 

established that any alleged partiality or failure to disclose by Mr. Esser prejudiced them 

by impacting the 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 if it is shown that the award was affected). 

Prior professional, and even current, social relationships between attorneys in a small 

community do not equate arbitrator partiality or an unwillingness of an attorney to 

advocate for a client. As Judge Frazier noted, Mr. Esser and Mr. Libey "had pretty good 

knock-down, drag-out fights" in his courtroom prior to the arbitration at issue. RP (Oct. 

24,2014) at 26. 

17 

No. 33175-0-III 

Garrett Ranches v. Larry Honn 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 sufficient basis for 

vacating the arbitration award. 

3. 	 Whether obvious error exists in the arbitration award 

The standards of reviewing arbitration awards are well-stated in S&S Construction: 

Washington public policy strongly favors finality of arbitration 

awards. Judicial review of arbitration awards is strictly limited to the 

grounds set forth by the Washington uniform arbitration act, chapter 7.04A 

RCW. Similarly, appellate review of arbitration proceedings is restricted to 

grounds identified in the act. An appellate court limits review of an 

arbitrator's award to that of the 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 of the lack of 

consideration issue, and res judicata should not apply because they timely asserted the 

consideration issue once the Garretts attempted to exercise the option to purchase. 

18 

No. 33175-0-III 

Garrett Ranches v. Larry Honn Family 

In Broom v. Morgan Stanley DW, Inc., 169 Wn.2d 231,237, 236 PJd 182 (2010), 

the court held that former RCW 7.04.160(4) (l943? authorized a reviewing court to 

vacate an award for a facial legal error. Former RCW 7.04.160(4) allowed an award to be 

vacated "[ w ]here the arbitrators exceeded their powers, or so imperfectly executed them 

that a final and definite award upon the subject matter submitted to them was not made." 

In holding that this subsection allowed vacatur for facial legal errors, it emphasized that 

the legislature had not sought to amend the statute despite knowing ofits historical 

judicial construction. Id. at 238. We note that the statute has since been amended, and its 

current provision more narrowly provides: "Upon motion of a 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 . 

them that 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 that reviewing courts would vacate them. The parties have not briefed the 

continued viability of the rule that allows review offacial legal errors, so we do not 

further address the issue, and assume without deciding, that the rule remains viable. 

! 

3 Repealed by the LAWS OF 2005, ch. 433, § 50 (eff. Jan. 1,2006). 

19 
No. 33175-0-III 

Garrett Ranches v. Larry Honn Family 

The facial legal error standard is a "very narrow ground for vacating an arbitral 

award," furthering the "purposes of arbitration" 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 of the 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 of the award." Cummings v. Budget Tank Removal & 

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 a portion of the award as 

punitive damages in a jurisdiction that does not allow punitive damages.'" Id. at 389 

(quoting Fed. Servs. Ins. Co. v. Pers. Representative ofEstate ofNorberg, 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 to purchase 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 with the actual 

dollar amounts awarded, any issue of law evident in the reasoning may also be considered 

as part of the face ofthe award."). 

20 

No. 33175-0-II1 

Garrett Ranches v. Larry Honn Family 

The eight-page award granted summary judgment to the Garretts based on 

(1) mutual promises in the lease constituting consideration for the option to purchase, and 

(2) res judicata 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 of law. 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, res judicata bars affirmative defenses. See Symington v. Hudson, 

40 Wn.2d 331, 338,243 P.2d 484 (1952) ("[W]here a party has had a full and fair 

opportunity to make all of the defenses at his command, and he elects not to disclose his 

claim ... the doctrine of res judicata 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 of fairness doctrine. "Washington's appearance of fairness 

4 The 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 of fairness doctrine, we address the latter only. 

21 
No. 33175-0-111 

Garrett Ranches v. Larry Honn Family 

doctrine not only requires a judge to be impartial, it also requires that the judge appear to 

be impartial." Tatham v. Rogers, 170 Wn. App. 76, 80, 283 P.3d 583 (2012). In the same 

vein, the Code of Judicial Conduct (CJC) requires "[a] judge shall disqualify himself or 

herself in any proceeding in which the judge's impartiality might reasonably be 

questioned." CJC Rule 2.11(A) (asterisk omitted). 

The issue for a judge in considering whether the appearance of 

fairness doctrine may be or has 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 of little significance. It 

is whether, in light of the 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 of establishing an appearance of fairness violation is on the proponent, 

who must "provide sufficient evidence to overcome the presumption that the trial court 

performed its functions without bias or prejudice." State v. Witherspoon, 171 Wn. App. 

271,289,286 P.3d 996 (2012), affd, 180 Wn.2d 875, 329 P.3d 888 (2014). "The party 

must produce sufficient evidence demonstrating actual or potential bias, such as personal 

or pecuniary interest on the part of the judge; mere speculation is not enough." Kok v. 

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 court reviews a trial judge's recusal decision for 

22 

No. 33 I 75-0-II1 

Garrett Ranches v. Larry Honn 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 and judge 

It may be ill advised for a judge to eat lunch with an attorney who currently has a 

case in front ofthe judge, but a reasonable person would not question the judge'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 of fairness doctrine when judge inadvertently had dinner with two named 

members of a class action lawsuit and "neither the judge nor the [two class members] 

discussed the case"). A personal relationship between the judge and 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 "better check her facts." RP (Feb. 13,2015) at 38. Judge Frazier 

admitted to having lunch with Mr. Libey before, but pointed out that lawyers and judges 

sometimes eat meals together. It is an unavoidable fact of litigation, especially in rural 

communities, that a judge is a member of the legal community and may have ongoing 

23 

No. 33175-0-111 

Garrett Ranches v. Larry Honn Family 

social relationships with attorneys coming before the court. Given the paucity of 

evidence that Judge Frazier had any greater of a social relationship with Mr. Libey than 

he had with other attorneys, and the absence of evidence 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 himself on this basis. 

B. Comments concerning case viability 

The Honns also argue that Judge Frazier violated the appearance of fairness 

doctrine by commenting that the arbitration should be dismissed quickly if res judicata is 

applied. Although a violation of the appearance of fairness doctrine may be present when 

the trial judge impermissibly comments on the evidence or case, such comments are 

harmless when they are not conveyed to the finder of fact. 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 of context to make it sound like 

he originated the res judicata idea. Instead, the Garretts, in their motion to have Mr. 

Blankenship appointed the neutral arbitrator, raised the defense of res judicata as a basis 

for having a person knowledgeable about the case history appointed. Further, Judge 

Frazier's comment that res judicata would likely dispose of the arbitration was made to 

explain his decision to not disqualify Mr. Libey, since dismissal on that summary basis 

24 

No. 33175-0-111 

Garrett Ranches v. Larry Honn Family 

would make Mr. Libey's testimony unnecessary. Moreover, Judge Frazier's res judicata 

comment was not communicated to a trier of fact, and thus the Honns were not 

prejudiced. See id. at 320. 

The Honns have failed to produce sufficient evidence to establish a violation of the 

appearance of fairness 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 himself was not manifestly unreasonable or 

based on untenable grounds. See id. at 23-24. 

5. Whether the Garretts should be awarded reasonable attorney foes on appeal 

On appeal, the Garretts request an award of reasonable attorney fees pursuant to 

RAP 18.1 and a provision in the farm lease. Paragraph 16 of the farm lease provides: 

16. Litigation: In the event either or both parties shall be reasonably 

required to retain an attorney to enforce any of the provisions of this Lease, 

the prevailing party in any such enforcement proceedings shall have 

awarded to them attorney's fees and costs to the extent reasonably incurred, 

in addition to such other relief as exists under the provisions of this Lease 

or by operation of law. Venue shall be in Whitman County, Washington. 

CP at 317. Under RCW 4.84.330, the prevailing party 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. "A contractual attorney fee provision authorizes 

25 

No. 33175-0-III 

Garrett Ranches v. Larry Honn Family 

an award of fees to the prevailing party on appeal." Kenneth W. Brooks Trust A.v. Pac. 

Media, LLC, 111 Wn. App. 393,401,44 P.3d 938 (2002). The Garretts are the prevailing 

party on appeal. We therefore award them their reasonable attorney fees, subject to their 

compliance with RAP 18.1. 

Affirmed. 

A majority ofthe panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

Lawrence-Berrey, J. 

j 

WE CONCUR: 

26