-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PAUL HARTIGAN,

Plaintiff/Counter DefendantAppellee, UNPUBLISHED October 1, 2015

v No. 321506 Macomb Circuit Court THE GOLD REFINERY LLC, LC No. 2011-004683 - CZ

Defendant/Counter PlaintiffAppellant.

Before: K. F. K ELLY , P.J., and C AVANAGH and S AAD , JJ.

P ER C URIAM

. Defendant appeals an order that entered a judgment for plainti ff in conjunction with an arbitral award. For the reasons stated below, we affirm.

I. FACTS AND PROCEDURAL HISTORY

Defendant The Gold Refinery is a decentralized gold-for-cash b usiness that purchases gold, usually in the form of jewelry, from individuals. Defend ant then resells the gold to smelters at a profit. Direct pu rchases are made by defendant’s agents, who organize hotel events and house parties where third parties can meet and sell their g old. The agents, according to defendant, are compensated based on the volume of gold that cha nges hands during these meetings.

Plaintiff Hartigan worked as an agent for defendant, and organ ized gold-purchase events in California. For reasons that are not clearly explained by e ither party, he sued defendant in 2011 for breach of contract and unpaid sales commissions. Beca use the parties ag reed to binding arbitration, the dispute was submitted to an arbitrator in 2012 , and the Macomb Circuit Court retained jurisdiction over t he matter pursuant to MCR 3.602. T here is no record of the arbitration proceedings, which took place from 2012 to 2014.

In August 2013, the arbitrator i ssued a partial final award, i n which the arbitrator made his legal conclusions. The order specified that defendant: (1) had breached its contract with plaintiff for failure to pay him promised compensation; and (2) owed plaintiff statutory damages under MCL 600.2961 for its intentiona l withholding of commissio n payments. The partial final-2- award noted that the parties would be allowed to present eviden ce on each of these issues to determine the precise amount of damages owed by defendant.

After he considered the evidence submitted by the parties, the arbitrator issued a final order in January 2014. The order required defendant to pay pla intiff roughly $42,000 with interest. Soon thereafter, on Ja nuary 22, 2014, defendant aske d the trial court to vacate or modify the arbitral award, because the arbitrator supposedly mi sapplied MCL 600.2961 by awarding plaintiff a “commission” for his work, even though pla intiff did not sell gold on defendant’s behalf. Plaintiff responded that: (1) defendant’s motion was untimely, because defendant failed to appeal the August 2013 partial final award, which contained the substantive legal findings applicable to th is case; and (2) in any event, t he arbitrator did not make an error of law under MCL 600.2961, because he made a factual determination that plaintiff was paid a commission for his activities.

The trial court concurred with plaintiff’s analysis and denied defendant’s motion to vacate or modify the arbitral award. On appeal, defendant clai ms that the trial court erred in denying its motion, and makes the same arguments as it did at t he motion hearing.

II. STANDARD OF REVIEW

A trial court’s decision to vacate or enforce an arbitral awar d is reviewed de novo. Washington v Washington , 283 Mich App 667, 671; 770 NW2d 908 (2009). “Judicial review of an arbitrator’s decision is narrowly circumscribed.” Ann Arbor v AFSCME Local 369 , 284 Mich App 126, 144; 771 NW2d 843 (2009). A court may not review an a rbitrator’s findings of fact or decision on the merits, or substitute its judgment for that of the arbitrator. Id

.

III. ANALYSIS

It is well-established Michigan law that “as long as the arbit rator is even arguably construing or applying the [arb itration] contract and acting wi thin the scope of his authority, a court may not overturn the deci sion even if convinced that the arbitrator committed a serious error.” Ann Arbor , 284 Mich App at 144. And, it is equally clear that an arbitr al award may be vacated “where [legal error] clearly appears on the face of the award or [in] the reasons for the decision as stated.” Saveski v Tiseo Architects, Inc , 261 Mich App 553, 555; 682 NW2d 542 (2004).

Here, there is nothing in the record regarding the arbitral aw ard that suggests the arbitrator exceeded his contractual authority or committed lega l error when he decided that plaintiff was entitled to damage s for withheld commissions purs uant to MCL 600.2961. As plaintiff observes, there is no merit to defendant’s protestati ons that its business model—where its agents purchase gold from third parties with company funds, and then are paid for the volume of gold they purchase—does not i nvolve the payment of commissio ns, and thus protects it from liability under MCL 600.2961. Defendant’s argument is simply i nconsequential to the particular facts of this case, which were properly found by the arbitrator . “On the face of the [arbitral] award,” it is obvious that the arbitrator found, in this case , that defendant withheld commissions from plaintiff, and that it accordingly was required to pay pla intiff damages pursuant to MCL-3- 600.2961. Saveski , 261 Mich App at 555. Again, “[a] court may not review an arb itrator’s factual findings or decision on the merits.” Ann Arbor , 284 Mich App at 144. 1

Because defendant’s appeal has no substantive legal merit, it is unnecessary to address defendant’s procedural argument on the timeliness (or lack ther eof) of its motion to vacate or modify the arbitral award. 2

Affirmed.

/s/ Kirsten Frank Kelly /s/ Mark J. Cavanagh /s/ Henry William Saad

1 Moreover, there is nothing for us to review apart from the arb itral awards—ther e is no record of the arbitral proceedings other than the August 2013 partial fin al award and the June 2014 final award.

2 In any event, the trial court correctly held that defendant’s motion to vacate or modify the arbitral award was untimely. The arbitrator issued his partial final award on August 26, 2013, which contained his substantiv e conclusions of law on each issu e in this case. If defendant believed the arbitrator’s legal conclusions to be in error, it should have filed a motion to vacate the award within 90 days pursuant to MCL 691.1703(2). Defendan t failed to do so, and its claims that the partial final aw ard was not a final order on th e substantive legal issues in this case are frivolous and unpersuasive. Defendant’s motion to vacate o r modify the arbitrator’s award, filed on January 22, 2014, contested its general liability under MCL 600.2961—the exact issue which was decided in the arbitrator’s partial final award, issu ed, again, on August 26, 2013. The motion did not contest the specific amount defendant was ordered to pay plaintiff under MCL 600.2961, which is the only issue the arbitrator decided in his final award, issued in January 2014.