MADISON, Wis. (CN) — The Wisconsin Supreme Court opted out of deciding whether an arbitrator sleeping during proceedings warrants vacating the arbitration award Tuesday, finding that the homeowners who objected to the arbitrator’s award did not forfeit their objection to the arbitrator’s doziness but kicking the question of whether his in-proceeding naps justified vacatur to the state appeals court.
Homeowners Lisa Taylor and Luis Cuevas entered arbitration with a home builder in 2018 over a collection of disputes regarding a home addition project. During five days of evidentiary hearings, Taylor and Cuevas say that arbitrator Mark Frankel fell asleep on all five days and had a glazed-over appearance throughout proceedings.
A circuit court found those allegations to be credible, and declined to confirm Frankel’s award of over $250,000 to the builder, Loren Imhoff Homebuilder. The Wisconsin Court of Appeals reversed that decision in 2020, holding that Taylor and Cuevas forfeited the issue because they had waited until after the close of evidence to raise the sleeping issue and hadn’t specifically asked Frankel, a former Dane County Circuit Court judge, to reconsider evidence they said he’d missed.
After hearing arguments in October, the Wisconsin Supreme Court found otherwise. In an order published Tuesday, Justice Patience Roggensack wrote that “many jurisdictions, including Wisconsin, agree that a proper time to raise an objection is before the arbitration award is issued.”
“Here, the homeowners raised their objection to the arbitrator’s sleeping to him before he issued the arbitral award,” Roggensack continued. “Even though it was after the evidentiary hearing was completed, there remained the opportunity for the arbitrator to make corrections for his sleeping.”
Unlike court proceedings, she noted, arbitration does not require contemporaneous objections to preserve issues for appeal.
“An arbitration hearing is subject to the conditions or rules of arbitration chosen by the parties,” she said, and is not bound by case law in the same way court proceedings are.
With one member – Justice Jill Karofsky – of the seven-member court not participating, the court was evenly divided on whether that meant the award had to be vacated, Roggensack wrote. The justices remanded that issue to the Court of Appeals.
At oral arguments, Taylor and Cuevas’ attorney Barret Van Sicklen of the Madison branch of the DeWitt Law Firm argued that his clients had brought up the sleeping issue several times in post-hearing filings, and that they’d waited until after the hearing to bring it up because “figuring out a way to delicately raise [the issue of sleeping] during a hearing is difficult.”
The homebuilder’s attorney, Paul Schartzenbart of Stafford Rosenbaum, suggested that the homeowners and their attorney had intentionally held on to the issue until it was clear arbitration had not worked out in their favor. He also took issue with the pro se motion in which the homeowners first noted the issue, calling it a “screed” packed with false and bad-faith allegations.
Neither Van Sicklen nor Schwartzenbart responded to requests for comment early Tuesday afternoon.
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