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Couch Invs., LLC v. Peverieri

Court of Appeals of Oregon

April 1, 2015

COUCH INVESTMENTS, LLC, an Oregon limited liability company, Plaintiff-Respondent,
v.
Leonard PEVERIERI, an individual; Judith Peverieri, an individual; and Peverieri Investments, LLC, an Oregon limited liability company, Defendant-Appellants

Argued and Submitted November 18, 2014.

Deschutes County Circuit Court. 11CV0285SF. A. Michael Adler, Judge. (Judgment). Roger J. DeHoog, Judge. (Supplemental Judgment).

Charlie Ringo argued the cause and filed the briefs for appellants.

Christopher J. Manfredi argued the cause for respondent. On the brief were Gerald A. Martin, Martin E. Hansen, and Francis Hansen & Martin, LLP.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.

OPINION

Page 1300

[270 Or.App. 235] TOOKEY, J.

Leonard and Judith Peverieri and Peverieri Investments, LLC (landlords) appeal a general judgment confirming an arbitration award in favor of Couch Investments, LLC (tenant). Landlords argue that the trial court erred in denying their petition to vacate the arbitration award, because the arbitrator exceeded his powers by issuing rulings that were beyond the scope of the parties' stipulation to arbitrate and limit claims. See ORS 36.705(1)(d) (" Upon petition to the court by a party to an arbitration proceeding, the court shall vacate an award made in the arbitration proceeding if * * * [a]n arbitrator exceeded the arbitrator's powers[.]" ). In deciding the issue submitted to him by the parties, the arbitrator ordered remedies, citing as authority the parties' stipulation and ORS 36.695(3) (providing, in part, that " an arbitrator may order such remedies as the arbitrator considers just and appropriate under the circumstances of the arbitration proceeding" ).

We conclude that, because the parties did not agree, in their stipulation, to " waive" or " vary the effect of" ORS 36.695(3), the arbitrator did not exceed his powers. See ORS 36.610(1) (with exceptions not relevant to this case, " a party to an agreement to arbitrate or to an arbitration proceeding may waive, or the parties may vary the effect of, the requirements of ORS 36.600 to 36.740 to the extent permitted by law" ). Thus, the trial court did not err when it denied landlords' petition to vacate the arbitration award, granted tenant's petition to enter the award, and entered a general judgment in the form of the arbitration award. Accordingly, we affirm.

The relevant facts are not in dispute. Tenant operated a gas station on landlords' property, pursuant to a long-term lease signed by the parties in 1997. In 2011, landlords filed a complaint seeking tenant's eviction, alleging that tenant was in default because tenant had (1) failed to maintain insurance in tenant's name; (2) allowed unauthorized third parties to occupy the premises; and (3) failed to comply with laws relating to tenant's use of the premises. An exhibit attached to the complaint shows that the laws that [270 Or.App. 236] landlords alleged tenant had violated were " DEQ regulations pertaining to the capture of storm water from the area surrounding the fueling stations." Tenant then filed a complaint against landlords, alleging intentional interference with economic relations and breach of contract and seeking related mandatory injunctive relief.

The two cases were consolidated and, before the case reached trial, the parties, through counsel, signed a " STIPULATION TO ARBITRATE AND LIMIT CLAIMS" (parties' stipulation), which stated:

" 1. The Parties have agreed to arbitrate the claims raised in the above actions. The Parties have mutually selected William E. Flinn to serve as the arbitrator. The arbitration is scheduled for December 18, 2012.
" 2. The only issue to be resolved through arbitration is whether [tenant], as tenant, or [landlords], as landlord, are

Page 1301

liable under the lease that is the subject of the above actions (the 'Lease') for the cost of storm water drainage improvements required by the Oregon Department of Environmental Quality (the 'DEQ Issue').

" 3. The Parties agree that David Cole of the DEQ may testify both through his affidavit and by phone, as well. The Parties disagree whether any other witness can provide relevant testimony on [the] DEQ Issue. The Parties, however, do agree that should the arbitrator allow any testimony to be offered on the DEQ Issue (other than Mr. Cole's testimony), it will only be testimony of the Parties themselves.
" 4. Other than the DEQ issue, all claims raised in the Parties' pleadings will be dismissed by the ...

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