__________ 

 

______________________________________________________ 

 

 

 

________________________________________________________ 

 

 

 

 

 

 

 

 

 

 

 

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2016 Term 

__________ FILED 

March 15, 2016 

No. 11-1613 released at 3:00 p.m. 

RORY L. PERRY, II CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

RYAN CUNNINGHAM,
 

Petitioner,
 

v. 

RONALD F. LEGRAND and MOUNTAIN COUNTRY PARTNERS, LLC, 

Respondents. 

Appeal from the Circuit Court of Kanawha County
 

Honorable James C. Stucky
 

Civil Action No. 10-C-1269
 

AFFIRMED
 

Submitted: February 24, 2016
 

Filed: March 15, 2016
 

Richard Neely, Esq. William F. Dobbs, Jr., Esq. 

Neely & Callaghan William C. Ballard, Esq. 

Charleston, West Virginia Elizabeth A. Amandus, Esq. 

Counsel for Petitioner Jackson Kelly PLLC 

Charleston, West Virginia 

Counsel for Chapter 11 Trustee of 

The Bankruptcy Estate of Mountain 

Country Partners, LLC 

JUSTICE LOUGHRY delivered the Opinion of the Court. 
 

 

 

SYLLABUS 

Manifest disregard of the law is not recognized as a valid statutory basis for 

challenging an arbitration award made pursuant to the provisions of the Federal Arbitration 

Act, 9 U.S.C. §§ 1-16 (2012). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LOUGHRY, Justice: 

The petitioner, Ryan Cunningham, appeals from the November 2, 2011, order 

of the Circuit Court of Kanawha County confirming an arbitration award and entering 

judgment on that award.1 Seeking to obtain a vacatur of the arbitration award, the petitioner 

argues that: the arbitrator manifestly disregarded the law of West Virginia; the arbitrator 

considered hearsay evidence; and the arbitrator refused to reopen the proceedings for 

rebuttal evidence.2 In response to these assignments of error, the bankruptcy trustee3 for 

respondent Mountain Country Partners, LLC (“Mountain Country”) argues that the 

petitioner has failed to identify any valid basis for setting aside the arbitration award. We 

concur and accordingly affirm the lower court’s ruling in this matter. Our decision is 

compelled both by the constricted scope of review for an arbitral award and the petitioner’s 

failure to raise even a colorable basis for vacating the award. 

1

This appeal was subject to an automatic stay pursuant to the provisions of 11 U.S.C. 

§ 362(a) (2012) by virtue of an involuntary bankruptcy petition filed against respondent 

Mountain Country Partners, LLC in the United States Bankruptcy Court for the Southern 

District of West Virginia. By order entered on May 12, 2015, this Court directed that the 

automatic stay be lifted. 

2

Petitioner was represented by counsel when the subject appeal was filed. This Court 

granted his attorney’s motion to withdraw as counsel by order entered on May 12, 2015. Mr. 

Cunningham was not represented by counsel at oral argument. 

3

See supra note 1. 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I. Factual and Procedural Background 

Mountain Country, a West Virginia limited liability company, was formed for 

the purpose of acquiring land and mineral rights to develop oil and gas properties in West 

Virginia and Kentucky.4 On October 10, 2006, Mr. Cunningham, Ronald F. LeGrand, and 

four additional individuals signed the Operating Agreement of Mountain Country 

(“Operating Agreement”). While the petitioner managed the day-to-day operations of 

Mountain Country for a salary,5 Mr. LeGrand was the actual manager due to his controlling 

voting percentage. Dissatisfied with the venture’s lack of profit and fearful that Mr. 

LeGrand was wrongfully disposing of assets and/or committing fraud,6 the petitioner 

instituted a civil action in the Circuit Court of Kanawha County on July 14, 2010. He 

sought injunctive relief for the purpose of gaining “access to all corporate records including 

all investor contact information . . . and [requested] that he be given operating control of 

4

The subject properties were purchased at a public auction from the bankruptcyestate 

of Buffalo Properties for $7.1 million. Ronald F. LeGrand organized investors to purchase 

the properties after learning of their availability from a friend of the petitioner’s while giving 

seminars on real estate investing. Mr. LeGrand is not a party to this appeal. 

5

His managerial duties included the purchasing of equipment, the maintenance of 

equipment, and the supervision of employees. Additionally, Mr. Cunningham obtained 

permits, procured bonds, and oversaw matters involving compliance. 

6

Mr. LeGrand was investigated by the Securities and Exchange Commission for civil 

fraud. In connection with charges that he and another person induced investors to purchase 

land and other assets from a bankrupt oil and gas company headquartered in West Virginia 

while misrepresenting the degree of risk and the amount of expected return, Mr. LeGrand 

agreed to a $150,000 fine by a consent decree. 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mountain Country Partners, LLC.”7 Because the petitioner had not submitted his claims to 

arbitration, as required by the Operating Agreement,8 the respondents sought to dismiss the 

complaint. 

Before the matter proceeded to arbitration pursuant to the mandatory 

arbitration clause contained in the Operating Agreement,9 a ruling was obtained with regard 

to the petitioner’s attempt to gain access to the company records. Judge John Hrko, sitting 

in for Judge Stucky, ruled by order entered on November 5, 2010, that “West Virginia Code 

31B-4-408 gives a member of a West Virginia LLC the absolute right to review all of the 

books and records of the LLC . . . .” Pursuant to that order, Mountain Country was directed 

to give the petitioner reasonable access to “all books and records.”10 The underlying case 

was stayed by the circuit court pending arbitration. 

7

The petitioner sought access to the company’s books pursuant to West Virginia Code 

§ 31B-4-408 (2015) (providing authority for members of limited liability companyto access 

company’s records). 

8

Pursuant to the terms of the Operating Agreement, the petitioner, along with the 

other signatories, had agreed that either party to a grievance could initiate arbitration 

proceedings, that the arbitration would be governed by the Federal Arbitration Act [9 U.S.C. 

§§ 1-16], that the arbitration would transpire in Duval County, Florida, that damages were 

limited to compensatory damages, and “that the decision of the arbitrator shall be final and 

binding and enforceable in a court of law.” 

9

There was no dispute in this case with regard to the requirement that the matter be 

resolved through arbitration; there was also no dispute as to the selection of the arbitrator. 

10When Mr. LeGrand sought a protective order with regard to document production, 

Judge Stucky referred the issue to the arbitrator. 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

During the arbitration proceeding, a dispute arose when the petitioner sought 

to discover the identity of Mountain Country’s investors. He argued that the provisions of 

West Virginia Code § 31B-4-408 (2015) entitled him to gain access to the investor list in 

addition to the company’s books and records he had already been permitted to review. 

Citing to the provision of the statute that excepts disclosure of business records “to the 

extent the demand or the information demanded is unreasonable or otherwise improper 

under the circumstances,” the arbitrator denied the petitioner access to the investor list. Id. 

at § 31B-4-408(b)(2). In furtherance of the ruling, the arbitrator found that the “identities 

of the additional investors in MCP [Mountain Country] are irrelevant to the claims and 

counterclaims advanced in this arbitration.” 

A three-day arbitration hearing commenced on April 18, 2011. At issue were 

the petitioner’s singular claim predicated on seeking control of Mountain Country11 as well 

as five counterclaims filed by Mr. LeGrand and Mountain Country against the petitioner.12 

11Specifically, the petitioner sought to have the Operating Agreement reformed to 

remove Mr. LeGrand from having control of Mountain Country. The petitioner sought to 

have a new manager elected by majority vote of the members, the appointment of a receiver, 

or his appointment as manager subject to confirmation or rejection by a majority of the 

members. The arbitrator denied this relief, finding no legal basis for the petitioner’s request. 

12Those counterclaims asserted that the petitioner had (1) converted 855 barrels of 

Mountain Country oil for use by one of his unrelated ventures, Cunningham Energy; (2) 

converted $29,700 of Mountain Country equipment to use for his other ventures, 

Cunningham Energy and Raven Ridge; (3) converted Mountain Country funds to pay his 

personal debts and expenses, including $17,400 in personal air travel, $7,150 in personal 

reimbursements to himself for excessive and inappropriate website design fees, and $14,000 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The evidence presented at the hearing included witness testimony, deposition testimony, and 

documentary evidence. The arbitrator advised the parties that he would take all evidence 

“for what it’s worth and discard it if it’s not relevant.” By agreement of the parties, all 

documents were introduced into evidence as authentic and admissible. The arbitrator found 

all the witness testimony to be credible. 

On the third day of the arbitration hearing, the petitioner did not attend the 

proceedings; his counsel failed to seek either a postponement or a continuance.13 Through 

a decision issued on July 5, 2011, the arbitrator denied the petitioner’s claim but awarded 

relief against him based on the respondents’ counterclaims. Mr. Cunningham was ordered 

by the arbitrator to pay Mountain Country $113,717.50 in damages and $162,442.00 in 

attorney’s fees and costs.14 The petitioner did not offer any testimony or defense in response 

to the counterclaims advanced by the respondents.15 Only when the award was issued did 

in legal fees related to a separate, failed venture known as ASHRO; (4) falsified Mountain 

Country asset values for his personal benefit; and (5) spoliated evidence of his and his 

agents’ malfeasance in regard to Mountain Country. 

13Purportedly, his failure to attend the final day of the hearing was due to a relapse 

of a prior case of sunstroke, brought on by the 93 degree heat of Jacksonville, Florida, where 

the hearing was taking place. 

14The arbitrator ruled in favor of Mr. LeGrand and Mountain Country on three of the 

five counterclaims pertaining to conversion of company property and company funds. 

15His counsel’s explanation was strategy driven: viewing the evidence against his 

client as unreliable, he assumed it would be disregarded by the arbitrator. 

5
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

the petitioner seek to reopen the proceedings for the purpose of submitting rebuttal evidence. 

This request was denied by the arbitrator. 

When the respondents sought to confirm the arbitration award in the circuit 

court, the petitioner filed a motion to vacate. The circuit court denied that motion and this 

appeal followed. 

II. Standard of Review 

As this Court recently acknowledged, “‘the scope of judicial review for an 

arbitrator’s decision is among the narrowest known at law.’” CDS Family Trust, LLC v. 

ICG, Inc., No. 13-0375, 2014 WL 184441, at *3 (W.Va. Jan. 15, 2014) (memorandum 

dec’n) (citing MCI Constructors, LLC V. City of Greensobro, 610 F.3d 849, 857 (4th Cir. 

2010)). “‘Awards by arbitration are to be favored and liberally construed and are not to be 

set aside unless they appear to be founded on grounds clearly illegal.’” Board of Educ. v. 

W. Harley Miller, Inc. (“Harley Miller II”), 160 W.Va. 473, 494 n.7, 236 S.E.2d 439, 451 

n.7 (1977) (quoting Syl. Pt. 3, Hughes v. Nat’l Fuel Co., 121 W.Va. 392, 3 S.E.2d 621 

(1939)). Because the full panoply of evidentiary and other procedural rules that govern 

cases at law do not apply to arbitration matters, even greater deference is given to decisions 

made by arbitrators which pertain to matters of procedure. See Harley Miller II, 160 W.Va. 

at 485, 236 S.E.2d at 446. Bearing these standards in mind, we proceed to consider whether 

6
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

the circuit court committed error by its decision to confirm and enter the award of the 

arbitrator. 

III. Discussion 

The petitioner acknowledges the limited grounds upon which vacatur of an 

arbitral award may be sought under the governing Federal Arbitration Act (“FAA”).16 See 

9 U.S.C. §§ 1-16 (2012). Under section ten of the FAA, an arbitration award may be 

vacated for the following four grounds: 

(1) where the award was procured by corruption, fraud, or 

undue means; 

(2) where there was evident partiality or corruption in the 

arbitrators, or either of them; 

(3) where the arbitrators were guilty of misconduct in refusing 

to postpone the hearing, upon sufficient cause shown, or in 

refusing to hear evidence pertinent and material to the 

controversy; or of any other misbehavior by which the rights of 

any party have been prejudiced; or 

(4) where the arbitrators exceeded their powers, or so 

imperfectly executed them that a mutual, final, and definite 

award upon the subject matter submitted was not made. 

Id. at § 10. Seeking to expand those statutory grounds, the petitioner suggests that the 

United States Supreme Court has sanctioned an additional basis for obtaining review of an 

arbitral award: “manifest disregard for the law.”17 See Wilko v. Swan, 346 U.S. 427, 436 

16See supra note 8. 

17By asserting “manifest disregard of the law” as a basis for review of the arbitral 

award, the petitioner maintained that the arbitrator, in ruling on a preliminary matter, 

ignored the provisions of West Virginia Code § 31B-4-408 that govern a member’s access 

7
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(1953), overruled on other grounds, Rodriguez de Quijas v. Shearson/American Express, 

Inc., 490 U.S. 477 (1989) (recognizing distinction between arbitrator’s interpretation of law 

and manifest disregard of law for purposes of judicial review). 

In Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008), the 

United States Supreme Court was asked to determine whether the FAA precludes a federal 

court from enforcing a clearly expressed agreement that provided for more expansive 

judicial review of an arbitration award than the much narrower standard of review set forth 

in the FAA. The arbitration agreement at issue in Hall Street contained a provision that 

permitted the parties to seek judicial review for plain legal errors–a provision that does not 

exist as a stated ground for review under the FAA. In resolving whether a private agreement 

could effectively expand the grounds for judicial review under the FAA, the high court was 

clear that sections 10 and 1118 of the FAA “provide exclusives regimes for the review 

provided by the statute.” Id. at 590. As part of its ruling in Hall Street, the high court 

commented on the theoretical existence of authority independent of the FAA–provided by 

state statutory or common law– for review of arbitration awards. See id. Significantly, 

to the records of a limited liability company. 

18Section 11 provides for a modification or correction of the arbitral award (a) where 

there was an evident material miscalculation of figures or an evident material mistake in the 

description of any person, thing, or property referred to in the award; (b) where the 

arbitrators have awarded upon a matter not submitted to them; and (c) where the award is 

imperfect in matter of form not affecting the merits of the controversy. See 9 U.S.C. § 11. 

8
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

however, this brief recognition of hypothetical non-FAA grounds for reviewing arbitration 

awards has, to date, not been acted upon by the Supreme Court. 

As a result, the petitioner’s suggestion to this Court that the United States 

Supreme Court has sanctioned the assertion of a particular non-FAA ground for seeking to 

vacate an arbitration award lacks both candor and legal support.19 Because the high court 

has declined to revisit the issue of whether “manifest disregard of the law” has any 

continued viability after Hall Street as an independent ground for review, 

20 the lower federal 

courts have concluded that the grounds set forth in the FAA remain the only mechanism for 

challenging arbitration awards. See PNGI Charles Town Gaming, L.L.C. v. Mawing, 2015 

WL 898559 at *1, n.1 (4th Cir. 2015) (“In the wake of the Supreme Court’s decision in Hall 

Street, this court has recognized that considerable uncertainly exists ‘as to the continuing 

viability of extra-statutory grounds for vacating arbitration awards.’”) (internal citations 

omitted); see Sheet Metal Worker’s Int’l Ass’n v. Beckley Mechanical, Inc., 803 F.Supp.2d 

19The grounds for vacatur in this case are limited to the grounds provided in the FAA 

under the terms of the Operating Agreement. Consequently, the petitioner’s attempt to rely 

on Hall Street fails on both procedural and substantive grounds. Not only was there no 

attempted expansion within the subject arbitration clause of the scope of judicial review 

beyond that expressly provided by the FAA, but further lacking is reference to any state 

statute or common law as a basis for the assertion of the “manifest disregard” challenge. 

20See Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 672 n.3 (2010) 

(“We do not decide whether ‘“manifest disregard”’ survives our decision in Hall Street as 

an independent ground for review or as a judicial gloss on the enumerated grounds for 

vacatur set forth at 9 U.S.C. §10.”) (internal citation omitted). 

9
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

511, 516 (S.D. W.Va. 2011) (“‘On application for an order confirming the arbitration award, 

the court must grant the order unless the award is vacated, modified, or corrected as 

prescribed in [9 U.S.C. §§ 10-11]. . . .’”) (quoting Hall Street, 552 U.S. at 587) (internal 

citations omitted). 

In considering this issue, the circuit court correctly ruled that “[m]anifest 

disregard for the law is not among the enumerated bases to vacate an award” under the FAA. 

See Ramos-Santiago v. U.P.S., 524 F.3d 120, 124 n.3 (1st Cir. 2008) (“We acknowledge the 

Supreme Court’s recent holding in Hall Street . . . that manifest disregard of the law is not 

a valid ground for vacating or modifying an arbitral award in cases brought under the 

Federal Arbitration Act . . . .”). Proceeding as though such a basis for review did exist for 

argument purposes only, the circuit court opined that the facts of this case fail to evidence 

any disregard of the law by the arbitrator. The specific legal concern raised by the petitioner 

was his contention that the arbitrator misapplied the provisions of West Virginia Code § 

31B-4-408 when it decided that the petitioner’s “request for information was unreasonable 

and improper under the circumstances.” Upon its review of this matter, the circuit court 

ruled that it “s[aw] no factual or legal basis for overturning that finding.” We concur. 

While the petitioner took the view that he had a right to all of the company 

records, including the identity of its investors, the statute is not written in absolute terms. 

10
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Notwithstanding the initial directive of Judge Hrko that “all” records be disclosed, the 

statute clearly contemplates situations such as that presented in this case where a particular 

document request may be determined to be either unreasonable or improper under the 

circumstances. The statute describes two scenarios. A limited liabilitycompanyis mandated 

to provide “[w]ithout demand, information concerning the company’s business or affairs 

reasonably required for the proper exercise of the member’s rights and performance of the 

member’s duties under the operating agreement or this chapter.” W.Va. Code § 31B-4­

408(b)(1). In contrast to that obligation, a limited liability company, upon demand, shall 

provide “other information concerning the company’s business or affairs, except to the 

extent the demand or the information demanded is unreasonable or otherwise improper 

under the circumstances.” Id. at § 31B-4-408(b)(2) (emphasis supplied). 

In making its ruling with regard to the petitioner’s request for disclosure of the 

investors in Mountain Country, the arbitrator first considered why Mr. Cunningham was 

seeking the investor list. His stated reason was so that he could “explore whether investors 

received payouts of MCP income.” The arbitrator found that “this information is readily 

ascertainable from the financial books and records of MCP, all of which have already been 

provided to Cunningham.” Further addressing the legitimacy of the request, the arbitrator 

determined that the “identities of the additional investors in MCP are irrelevant to the claims 

and counterclaims advanced in this arbitration.” Finding the request “unreasonable and 

11
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

improper under the circumstances,” the arbitrator concluded that the request was “not 

appropriate, as it will not further the needs of the parties and will not make discovery in this 

matter expeditious and cost effective.” 21 

As part of its review of the arbitral award for “manifest disregard,” the circuit 

court addressed the constrained nature of its review: “A court ‘is limited to determining 

whether the arbitrators did the job they were told to do–not whether they did it well, or 

correctly, or reasonably, but simply whether they did it.’” (citing Remney v. PaineWebber, 

Inc., 32 F.3d 143, 146 (4th Cir. 1994), emphasis supplied by circuit court); accord Oxford 

Health Plans LLC v. Sutter, 133 S.Ct. 2064, 2070-71 (2013) (recognizing that court may not 

correct even “grave error” of arbitrator and stating that arbitrator’s construction of contract 

“holds, however good, bad, or ugly”); Wilko, 346 U.S. at 438 (“Congress has afforded 

participants in transactions subject to its legislative power an opportunity generally to secure 

prompt, economical and adequate solution of controversies through arbitration if the parties 

are willing to accept less certainty of legally correct adjustment.”). The circuit court 

correctly recognized that the petitioner’s lack of allegations of fraud or other illegal conduct 

effectively rendered the merits of the arbitrator’s decision beyond review. See Barber v. 

21This finding was made pursuant to Rule 11 of the CPR [Conflict Prevention & 

Resolution] Non-Administered Arbitration rules, which authorizes an arbitrator to “facilitate 

such discovery as it shall determine is appropriate in the circumstances, taking into account 

the needs of the parties and the desirability of making discovery expeditious and costeffective.” 

12
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Union Carbide Corp., 172 W.Va. 199, 203, 304 S.E.2d 353, 357 (1983) (stating that “courts 

of this State will not review an arbitration award rendered pursuant to the terms of a 

commercial contract except for actual fraud”); Clinton Water Ass’n v. Farmers Constr. Co., 

163 W.Va. 85, 87, 254 S.E.2d 692, 694 (1979) (“It has long been the rule in this State that 

where parties have undertaken arbitration, their award is binding and may only be attacked 

in the courts on the basis of fraud or on those grounds set out in W. Va. Code, 55-10-4.”); 

see also W.Va. Code § 55-10-25 (Supp. 2015) (permitting vacation of arbitral awards on 

grounds of corruption, fraud, undue means, evident partiality, and corruption or misconduct 

of arbitrator). As this Court stated in Barber, “[i]f arbitration awards can be challenged in 

court on any theory other than actual fraud or failure to follow the procedures that were 

bargained for in the arbitration clause, then the goals of speed, parsimony, and flexibility are 

all entirely defeated. . . .” 172 W.Va. at 203, 304 S.E.2d at 356. 

The petitioner, as the circuit court noted, “cannot claim, as an end-run around 

the limited bases for vacatur, that an arbitrator shows ‘evident partiality’ or ‘manifestly 

disregarded the law’ simply because he disagrees with the decisions rendered.”22 As the 

circuit court sagely observed, “[s]uch a broad interpretation of ‘evident partiality’ or 

‘manifest disregard’ would allow courts in every instance to review the merits of the 

22The petitioner’s argument with regard to “evident partiality” was that, absent 

partiality, the arbitrator could not have ruled against him. 

13
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

arbitrator’s decision and thereby destroy the three goals of effective arbitration.” See id. 

(discussing arbitral goals of speed, parsimony, and flexibility). Recognizing the petitioner’s 

attempt to relitigate an issue in court that was alreadyresolved through arbitration, the circuit 

court properly denied the motion to vacate on grounds of manifest disregard for the law. 

See Harley Miller II, 160 W.Va. at 485, 236 S.E.2d at 446. Based on the foregoing, we hold 

that manifest disregard of the law is not recognized as a valid statutory basis for challenging 

an arbitration award made pursuant to the provisions of the Federal Arbitration Act.23 See 

9 U.S.C. §§ 9-10. 

As a secondary basis for his challenge of the arbitral award, the petitioner 

argues that the arbitrator wrongly relied on hearsay evidence and failed to reopen the 

proceedings to permit him to submit additional evidence. Turning first to the assignment 

grounded in hearsay evidence, we recognize that under the rules applicable to the arbitration 

proceeding, the rules of evidence were not required to be followed.24 Juxtaposed against a 

23We note additionally that manifest disregard of the law is similarly not a ground for 

challenging an arbitration award under the Revised Uniform Arbitration Act that took effect 

in this state on July 1, 2015. See W.Va. Code § 55-10-25. 

24Pursuant to § 12.2 of the CPR Rules for Non-Administered Arbitration: 

Testimony may be presented in written and/or oral form as the 

Tribunal may determine is appropriate. The Tribunal is not 

required to apply the rules of evidence used in judicial 

proceedings, provided, however, that the Tribunal shall apply 

the lawyer-client privilege and the work product immunity. The 

Tribunal shall determine the applicability of any privilege or 

14
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

professed acknowledgment that the evidentiary rules were inapplicable is the petitioner’s 

discordant, hyperbolic complaint that “flagrant disregard for those rules leads to fabulously 

unjust results.” Contending that the monetary award of $113,717.50 levied against him was 

based upon the “rankest hearsay,” the petitioner frames a test to govern the consideration of 

hearsay evidence during arbitration. Seeking to secure the introduction of only reliable 

hearsay, he suggests that we sanction hearsay evidence dependent on the status of the 

original speaker. By way of illustration, he theorizes that when a public official explains his 

actions as being consistent with what the governor instructed, then that testimony should 

necessarily be viewed as reliable. In other instances involving non-elected individuals who 

are recounting the words of mere lay people, that testimony would presumably be unreliable 

under the petitioner’s conjectural litmus test. 

Not only is the petitioner’s hearsay “test” patently self-serving but it wholly 

conflicts with the more informal nature of arbitration proceedings. By design, an arbitration 

proceeding addresses a legal dispute in a fashion aimed at resolving the matter more 

expeditiously and less expensively than might occur in the court system. Dispensation with 

the formal rules of evidence and procedure is part of what enables arbitrations to advance 

immunity and the admissibility, relevance, materiality and 

weight of the evidence offered. 

15
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

in an alacritous manner by comparison to judicial proceedings. Articulating the salutary 

effect of the procedural shortcuts inherent to arbitrations, this Court previously observed: 

‘The parties contract for an arbitrator, not a procedure. Due 

process does not necessarily mean Anglo-American rules of 

evidence, nor winner-take-all substantive rules. . . . The system 

of review of arbitration awards should be set up to avoid delay 

caused by the losing party in arbitration challenging the award 

of the arbitrators, especially on mere procedural grounds! The 

strict rules governing an action at law have never been 

applicable to an arbitration proceeding. The parties should 

know this when they agree to arbitrate, and they should not be 

heard later to complain on an issue of procedure. Arbitration 

can, and almost inevitably does, decide the substance of the 

controversy with substantial justice regardless of procedure.’ 

Harley Miller II, 160 W.Va. at 485, 236 S.E.2d at 446 (emphasis partially supplied and 

internal citation omitted) (quoting Board of Educ. v. W. Harley Miller [Harley Miller I], 159 

W.Va. 120, 134, 221 S.E.2d 882, 889 (1975) (Neely, J., concurring). 

While the petitioner cursorily references testimony of specific witnesses that 

the respondents offered at arbitration to which he now objects, the record reveals that he did 

not challenge that testimony in the arbitral proceeding. Neither did he introduce his own 

witnesses or evidence to refute the testimony about which he complains. In explanation, the 

petitioner characterizes those decisions as tactical.25 His prognostication that the arbitrator 

would reject the respondents’ evidence was a gamble that he lost. 

25See supra note 15. 

16
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The petitioner specificallylinked his need to reopen the arbitration proceeding 

to the arbitrator’s reliance on hearsayevidence. The post-award request to introduce rebuttal 

evidence is expresslytied to his belief that the arbitrator would “disregard[] rampant hearsay 

testimony.” Rather than avowing to discredit hearsay evidence, the arbitrator iterated: “As 

I said the very first day, I will take it for what it’s worth and discard it if it’s not relevant.” 

The circuit court found that “the Arbitrator never stated that he would not accept or would 

ignore relevant hearsay testimony; ‘relevance’ was the only touchstone.” See ARMA, 

S.R.O. v. BAE Sys. Overseas, Inc., 961 F.Supp.2d 245, 263 (D.D.C. 2013) (“An arbitrator 

has substantial leeway to admit any evidence that it finds useful–even hearsay evidence.”). 

Given its decision that the arbitrator’s consideration of hearsay evidence was 

not improper, the circuit court found it unnecessaryto address the petitioner’s related request 

to reopen the hearing. Solely to address the alleged error, however, the circuit court 

proceeded to rule that the arbitrator had the necessary discretion to refuse the petitioner’s 

request to reopen the proceedings. The circuit court concluded that the petitioner “was not 

deprived of the ability to present evidence . . . .” And “[t]o the extent Cunningham now 

points to his alleged illness at the final day of the hearing as a potential issue preventing 

17
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

further testimony, he could have, but did not, seek an extension or continuance before the 

hearing was closed.”26 

In seeking to vacate the arbitral award by asserting such a patently procedural 

complaint as the need to reopen the proceeding to respond to hearsay evidence, the petitioner 

has relied upon improper grounds for relief.27 That a court may vacate an arbitrator’s 

decision issued pursuant to the FAA “only in very unusual circumstances” is clear. First 

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942 (1995). Further evident is our 

appreciation that the procedural grounds asserted by the petitioner in this case do not 

constitute the requisite “unusual circumstances.” Id. 

IV. Conclusion 

Based on the foregoing, the decision of the Circuit Court of Kanawha County 

to confirm the arbitration award and enter judgment on that award is affirmed. 

Affirmed. 

26The circuit court included as part of its findings: “Cunningham has acknowledged 

that the decision to not seek a postponement was a ‘tactical mistake’ and that ‘counsel would 

have been more astute’ to do so.” 

27As the circuit court recognized, the procedural issue not to reopen the hearing after 

the arbitral award had been issued “is beyond the ken of this Court on review.” 

18