Arbitration Award

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WI Court of Appeals – District IV

Case Name: Loren Imhoff Homebuilder, Inc., v. Lisa Taylor, et al.,

Case No.: 2019AP2205

Officials: Blanchard, Kloppenburg, and Graham, JJ.

Focus: Arbitration Award

Lisa Taylor and Luis Cuevas (the homeowners) entered into a construction contract with Loren Imhoff Homebuilder, Inc. (the builder) for a remodeling project. The project bogged down in disputes. The disputes went into mediation and then into arbitration before a single arbitrator. The parties participated in an evidentiary hearing before the arbitrator. The arbitrator’s decision resulted in a net award in favor of the builder, but each side prevailed on some issues.

The homeowners moved the circuit court to vacate the arbitration award on multiple grounds. The court rejected all but one. The court accepted the homeowners’ argument that the arbitrator fell asleep at some point or points during the evidentiary hearing and that as a result he “so imperfectly executed [his powers as arbitrator] that a mutual, final and definite award upon the subject matter submitted was not made.” See WIS. STAT. § 788.10(1)(d) (2017-18) (including such “imperfect execut[ion]” as one ground on which a circuit court must vacate an arbitration award). The builder appeals.

We conclude that the homeowners forfeited the claim that the circuit court should vacate the award based on the momentary drowsiness or sleeping that they ended up alleging in court because they failed to ask the arbitrator to resolve any problems caused by alleged momentary drowsiness or sleeping. Accordingly, we reverse the order vacating the arbitration award and direct the circuit court to confirm it.

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Derek A Hawkins is Associate Corporate Counsel, IP at Amazon.