Karl Anderson and Courtney Anderson v. Schumacher Homes of Louisiana, Inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

FIRST CIRCUIT

1 NO. 2024 CA 0678

j/
KARL ANDERSON AND COURTNEY ANDERSON

RJAMW

SCHUMACHER HOMES OF LOUISIANA, INC.

Judgment Rendered.- DEC 3 0 2024

Appealed from the
21st Judicial District Court
In and for the Parish of Livingston
State of Louisiana
Case No. 179956, Division C

The Honorable Erika W. Sledge, Judge Presiding

Shawn A. Carter Counsel for Defendant/ Appellant
Lafayette, Louisiana Schumacher Homes of Louisiana,
Inc.

David Dominique Counsel for Plaintiffs/ Appellees
Denham Springs, Louisiana Karl Anderson and Courtney
Anderson

BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.

nc r 1)

THERIOT, J.

Schumacher Homes of Louisiana, Inc. appeals the 21st Judicial District

Court' s January 30, 2024 judgment granting Karl and Courtney Anderson' s motion

to vacate an arbitration award. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In 2021, Karl and Courtney Anderson (" the Andersons") contracted with

Schumacher Homes of Louisiana, Inc. (" Schumacher") for the construction of their

home.' The construction contract included an arbitration clause. Schumacher

completed the Andersons' home and delivered occupancy in 2022. After delivery

of the home, the Andersons initiated arbitration proceedings with the American

Arbitration Association (" AAA"), alleging certain defects in the construction of the

home. The Andersons were not represented by counsel during the arbitration

proceedings. This appeal relates to the selection of the arbitrator.

During the arbitrator selection process, the AAA provided a panel of ten

arbitrators, including Gary Giepert, to allow the parties to strike certain arbitrators

and rank the remaining arbitrators in order of their preference. On August 17,

2022, Schumacher submitted its ranked list wherein it struck four out of the ten

panelists and ranked Giepert first out of the remaining six panelists. On August

24, 2022, the Andersons submitted their ranked list wherein they struck out six of

ten panelists provided by the AAA and ranked Giepert third out of the remaining
four panelists. The AAA selected Giepert as arbitrator.

On August 29, 2022, Giepert executed a general arbitrator oath form

wherein he asserted that none of the parties had appeared before him previously.

On September 6, 2022, the AAA issued a letter to the parties informing them of the
selection of Giepert. The letter also requested for the parties or their counsel to

communicate any potential conflicts to the AAA.

1 The home' s purchase price was $ 407,282. 12.

2

In November 2022, while the arbitration was pending, the Andersons alleged

that Giepert engaged in ex -parte communication with Schumacher' s counsel,

which is prohibited by the AAA' s Construction Industry Arbitration Rules and

Mediation Procedures (" AAA Construction Rules"). The Andersons were

aggrieved by the communication and filed a motion to award the entire claim,

which was treated as a motion to remove the arbitrator. A status conference was

held on November 30, 2022, which assuaged the Andersons' fairness and

impartiality concerns. Neither Giepert nor Schumacher revealed any prior

arbitrations at the status conference.

Arbitration proceedings began at the Andersons' home on May 31, 2023,

and continued at Schumacher' s Holden, Louisiana office on June 1, 2023 and June

2, 2023. On June 30, 2023, the arbitrator' s award was rendered, filed, and

delivered to the parties.2 Following the rendition of the arbitrator' s award, the

Andersons discovered that Giepert was the arbitrator in two prior arbitrations in

which Schumacher was a party, which were filed in 2015 and closed in 2015 and

2016 respectively.

On September 27, 2023, the Andersons filed a motion to vacate the

arbitration award wherein they argued that the award had been obtained through

corruption, fraud, or undue means and evidenced partiality on the part of the

arbitrator. On October 30, 2023, Schumacher filed a motion to confirm the

arbitration award. On November 27, 2023, Schumacher filed exceptions and an

opposition to the Andersons' motion to vacate. Both motions were heard on

2 Giepert, as the arbitrator, awarded the following monetary damages to the Andersons: ( 1)
5, 000.00 for issues relating to interior non-structural framing; ( 2) $ 20, 300. 00 to replace the
home' s defective roof, (3) $ 900. 00 to upgrade padding beneath the carpet; and ( 4) $ 3, 082. 50 for
inspection costs. Giepert also gave Schumacher the option to either repair the following or pay
monetary damages for same: ( 1) caulking around the house, texture in the downstairs hall
bathroom, and small area on the ceiling in the garage ($ 350.00); ( 2) water shutoff placed where it
would not get covered by mud ($ 300. 00); and support below exterior door threshold and safety
hinges ($ 250. 00). Lastly, Giepert awarded to the Andersons a limited lifetime warranty on their
windows, which was to be provided by Schumacher.

9

December 4, 2023. The trial court ruled on some matters in open court and took

the remaining matters under advisement. On December 18, 2023, the trial court

signed written reasons wherein it found that Giepert' s failure to disclose his prior

arbitrations involving Schumacher constituted a valid basis for vacating the

arbitration award. The trial court pointed to Giepert' s sworn oath that no party had

appeared before him in the past and the Andersons' subsequent discovery that

Schumacher had in fact appeared before Giepert on at least two occasions. The

trial court found the circumstances presented a situation where there was evident

partiality on the part of the arbitrator.3

A written judgment vacating the arbitration award was signed on January 30,

2024. Schumacher filed a motion for new trial, which was heard and denied in

open court on March 18, 2024. The trial court signed a written judgment denying

Schumacher' s motion for new trial on April 3, 2024. This appeal by Schumacher

followed.

ASSIGNMENTS OF ERROR

Schumacher assigns the following as error:

1) The trial court erred in shifting the burden of proof to Schumacher
based on the Andersons' asserted " impression of possible bias" and/ or
appearance of bias" resulting from the arbitrator' s non -disclosure of
prior arbitrations with Schumacher;

2) The trial court erred in vacating the award without requiring proof
that ( i) the arbitration award was procured by corruption, fraud, or
undue means or ( ii) there was evident partiality or corruption on the
part of the arbitrator;

3) The trial court erred by applying a per se vacatur rule for
nondisclosure of prior arbitrations and not requiring proof (i) that the
arbitrator' s non -disclosure was intentional or (ii) that a conflict checks
was not performed.

3 The trial court also considered the Andersons' arguments involving ex -parte communication
between Giepert and Schumacher, noting that the Andersons were aware of the ex -parte
communication as of November 2022 and filed a motion to award the entire claim based upon
the incident, which they subsequently retracted. The trial court found that the Andersons waived
their arguments to vacate the arbitration. award based upon the ex -parte communication as a
result.

E

4) The trial court erred by not imposing upon the Andersons a
reasonable duty to investigate Giepert' s arbitration history;

5) The trial court erred by vacating the award based on facts that
were known or were discoverable by due diligence before or during
the arbitration;

6) The trial court erred in granting a motion to vacate that was not
served by the sheriffs office within three ( 3) months after the award
was filed and delivered.

STANDARD OF REVIEW

Arbitration is a mode of resolving differences through the investigation and

The object
determination by one or more individuals appointed for that purpose.

of arbitration is the speedy disposition of differences through informal procedures

without resort to court action. Crescent Prop. Partners, LLC v. Am. Mfrs. Mut.

Ins. Co., 2014- 0969 ( La. 1/ 28/ 15), 158 So. 3d 798, 803. As a matter of public

policy, Louisiana strongly favors arbitration; thus, arbitration awards are presumed

valid. DeArmond v. E. Jacob Constr., Inc., 2021- 0981 ( La. App. 1 Cir. 4/ 8/ 22),

342 So. 3d 77, 80.

Under the Louisiana Binding Arbitration Law, La. R.S. 9: 4201 et seq., a

party to an arbitration proceeding may, within one year after the award is made,

apply to the trial court for confirmation of the award, and the court shall confirm

the award unless the award is vacated, modified, or corrected, as set forth in La.

R.S. 9: 4210 and 4211. See La. R. S. 9: 4209. A court may vacate, modify, or

correct an arbitration award based. only on the exclusive grounds specified in La.

R.S. 9: 4210 and 4211, which do not include errors of law or fact. DeArmond, 342

So. 3d at 80. Of relevance here, under La. R.S. 9: 4210( B), the trial court shall

vacate an arbitration award where the arbitrator was evidently partial or corrupt.4

DeArmond, 342 So. 3d at 80. A court, however, is not entitled to substitute its

4 While other circuit courts have adopted a " manifest disregard for the law" as an additional basis
for vacating an arbitration award, this court has adhered to the statutory standard established by
La. R.S. 9: 4210. DeArmond, 342 So. 3d at 80 n. 2 ( citing Bergeron v. Patel, 2016- 0600 ( La. App.
1 Cir. 5/ 17/ 17), 2017 WL 2170142, * 4 n. 3, and cases cited therein).

E

judgment for that of the arbitrator chosen by the parties. Rather, a court' s

determination is limited to whether the party challenging the award has proven one

or more of the specific statutory grounds for invalidation. An appellate court

conducts a de novo review of a trial court judgment confirming or vacating an

arbitration award. DeArmond, 342 So. 3d at 80.

DISCUSSION

Assignments of Error 1 through 5

Schumacher argues that the trial court erred in ( 1) shifting the burden to

proof to Schumacher based on the Andersons' asserted " impression of possible

bias" and/ or " appearance of bias" resulting from the arbitrator' s non -disclosure of

prior arbitrations with Schumacher; ( 2) vacating the award without requiring proof

that the arbitration award was procured by corruption, fraud, or undue means, or

proof of evident partiality or corruption on the part of the arbitrator; and ( 3) not

requiring proof that the arbitrator' s nondisclosure was intentional or that a conflicts

check was not performed.

An arbitration award may be vacated under La. R.S. 9: 4210, which states in

relevant part:

In any of the following cases the court in and for the parish wherein
the award was made shall issue an order vacating the award upon the
application of any party to the arbitration.

B. Where there was evident partiality or corruption on the part of the
arbitrators or any of them.

To constitute evident partiality, it must clearly appear that the arbitrator was

biased, prejudiced, or personally interested in the dispute. Proof of evident

partiality requires more than an appearance of bias. A challenging party must

0

show that a reasonable person would have to conclude that an arbitrator was partial

to the other party to the arbitration.' DeArmond, 342 So. 3d at 81.

The parties' construction contract included an arbitration clause whereby the
parties agreed to "
final and binding arbitration by an arbitrator appointed by the
AAA] in accordance with the [ AAA Construction Rules]." The Andersons

introduced the AAA Construction Rules at trial.

Rule 19 of the AAA Construction Rules, which provides the rules for

disclosure, states in relevant part:

a) Any person appointed or to be appointed as an arbitrator as
well as the parties and their representatives shall disclose to the
AAA, as promptly as practicable, any circumstance likely to give
rise to justifiable doubt as to the arbitrator' s impartiality or
independence, including any bias or any financial or personal
interest in the result of the arbitration or any past or present
relationship with the parties or their representatives. Such
obligation shall remain in effect throughout the arbitration. Failure on
the part of a party or a representative to comply with the requirements
of this rule may result in the waiver of the right to object to an
arbitrator in accordance with Rule R-42. ( Emphasis added.)

Rule 20 of the AAA Construction Rules relates to the disqualification of an

arbitrator and provides in pertinent part:

a) Any arbitrator shall be impartial and independent and shall
perform his or her duties with diligence and in good faith, and may be
subject to disqualification for.

i. partiality or lack of independence,
ii. inability or refusal to perform his or her duties with diligence and
in good faith, and
iii. any grounds for disqualification provided by applicable law.

Giepert was also required to fill out a general arbitrator oath form provided

by the AAA. The oath includes the following information regarding the obligation

to disclose:

5 It is also a general rule that a party must object to an arbitrator' s partiality at the arbitration
hearing, when he knows the reasons supporting the objection, before such an objection will be
considered.
In re Arbitration Between U.S. Turnkey Expl., Inc. and PSI, Inc., 577 So. 2d 1131,
1135 ( La. App. 1 Cir. 1991). However, the Andersons did not learn that Giepert had previously
acted as arbitrator in proceedings involving Schumacher until after the arbitration award was
rendered.

7

Disclosure Obligations

It is most important that the parties have complete confidence in
the arbitrator' s impartiality. Therefore, please disclose any past
or present relationship with the parties, their counsel, or potential
witnesses, direct or indirect, whether financial, professional, social
or of any other kind. This is a continuing obligation throughout your
service on the case and should any additional direct or indirect contact
arise during the course of the arbitration or if there is any change at
any time in the biographical information that you have provided, it
must also be disclosed. Any doubts should be resolved in favor of
disclosure. If you are aware of direct or indirect contact with such
individuals, please describe it below. Failure to make timely
disclosures may forfeit your ability to collect compensation. All
disclosures will be brought to the attention of the parties. ( Emphasis
added.)

The oath form also states in pertinent part:

I attest that I have diligently conducted a conflicts check, including a
thorough review of the information provided to me about this case to
date, and that I have performed my obligations and duties to disclose
in accordance with the Rules of the [ AAA], Code of Ethics for
Arbitrators in Commercial Disputes, the parties' agreement, and
applicable law pertaining to disclosures.

The oath form further asks the arbitrator a series of questions to determine

whether any potential conflicts exist. Most relevant is question 9, which asks

whether " any of the party representatives, law firms or parties appeared before you

in past arbitration cases[.]" Giepert' s answer was " NO."

Schumacher' s first three assignments of error relate to the burden of proof

and the purported absence of evidence demonstrating that Giepert intentionally

failed to disclose his prior arbitrations for Schumacher or failed to perform a

conflicts check. However, the Andersons' burden of proof required them to

demonstrate that a reasonable person would have to conclude that an arbitrator was

partial to the other party to the arbitration. See DeArmond, 342 So. 3d at 81;

Bergeron v. Patel, 2016- 0600 ( La. App. 1 Cir. 5/ 17/ 17), 2017 WL 2170142 at * 5

unpublished opinion).
Considering the evidence presented at trial, we find that

the Andersons successfully met this " reasonable person" standard. Rule 19 of the

AAA Construction Rules requires that any person appointed or to be appointed as

an arbitrator, as well as the parties themselves, promptly disclose any circumstance

likely to give rise to justifiable doubt as to the arbitrator' s impartiality. Thus, not

only did Giepert have a duty to disclose, but Schumacher, the Andersons, and their

principals and attorneys, had a similar duty of disclosure. See Bergeron, 2017 WL

2170142 at * 7. Despite this continuing obligation, neither Giepert nor Schumacher

disclosed that Giepert had previously acted as arbitrator in two of Schumacher' s

prior arbitrations, including two of the three arbitrations involving Schumacher that

preceded the Anderson arbitration, until after the Andersons filed their motion to

vacate. Instead, Giepert swore that none of the parties had appeared before him

previously.

Although Schumacher argues that Giepert' s nondisclosure of the prior

proceedings with Schumacher may have been due to oversight, an error in

Giepert' s conflicts check software, the routine destruction of old files, or Giepert

simply forgetting, the fact remains that the disclosure was not made. Even if

inadvertent, Giepert' s failure to disclose the prior arbitrations for Schumacher to

the Andersons took away the Andersons' right to make a knowing and timely

objection.
See Citywide Testing and Inspection Inc. v. Shaw Env' t Inc., 2012- 0018

La. App. 4 Cir. 5/ 23/ 12), 2012 WL 4044900 at * 3 ( unpublished opinion), writ

denied, 2012- 1427 ( La. 10/ 8/ 12), 98 So.3d 858 ( affirming a trial court' s grant of a

motion to vacate arbitration due to the AAA' s failure to timely disclose that the

arbitrator' s wife was employed by a client of the opposing party). The arbitration

proceedings were tainted with an appearance of impropriety. See Citywide Testing
and Inspection Inc., 2012 WL 4044900 at * 3.
Considering the AAA' s emphasis

on the importance of disclosures and the facts presented, we find that a reasonable

person would have concluded that Giepert was partial to Schumacher.

Accordingly, assignments of error one, two, and three lack merit.

M

Schumacher further argues that the trial court erred by not imposing upon

the Andersons a reasonable duty to investigate Giepert' s arbitration history and

vacating the award based on facts that were known or were discoverable by due

diligence before or during the arbitration. However, the Andersons clearly

depended upon Giepert' s sworn statement that none of the parties had previously
appeared before him. This reliance was not unreasonable. We do not agree that

due diligence or the reasonable duty to investigate requires the Andersons to

assume that the information provided by the arbitrator ( in this case, the failure to
disclose) is false. Assignments of error four and five lack merit.

Assignment of Error 6

Schumacher further argues that the trial court erred in granting a motion to
vacate the arbitration award when. that motion was not served by the sheriff' s

office within three months of the arbitrator' s award being filed and delivered.

Louisiana Revised Statutes 9: 4213 provides in pertinent part:

Notice of a motion to vacate, modify, or correct an [ arbitration] award
shall be served upon the adverse party or his attorney within three
months after the award is filed or delivered, as prescribed by law for
service of a motion in an action. ( Emphasis added.)

Further, La. Code Civ. P. article 1313 states in relevant part:

A. Except as otherwise provided by law, every pleading subsequent
to the original petition, and every pleading which under an
express provision of law may be served as provided in this Article,
may be served either by the sheriff or by:
1) Mailing a copy thereof to the counsel of record, or if there is no
counsel of record, to the adverse party at his last known address, this
service being complete upon mailing.

4) Transmitting a copy by electronic means to counsel of record,
or if there is no counsel of record, to the adverse party, at the number
or addresses expressly designated in a pleading or other writing for
receipt of electronic service. Service by electronic means is complete
upon transmission but is not effective and shall not be certified if the
serving party learns the transmission did not reach the party to be
served. ( Emphasis added.)

10

The arbitration award in the instant case was issued on June 30, 2023. The

Andersons filed their motion to vacate the arbitration award on September 27,

2023. Per the certificate of service and attached documents introduced as an

exhibit at trial, the Andersons served the motion to vacate the arbitration award

upon Schumacher via certified mail and e- mail on September 27, 2023. In other

words,
the Andersons filed their motion to vacate and served Schumacher via

certified mail and e- mail within three months of the award being filed.

The Andersons served Schumacher via certified mail and e- mail within the

three months allotted for doing so, but did not effectuate sheriff's service within

that time period. Schumacher argues the trial court should have dismissed the

Andersons' motion to vacate as untimely as a result. Louisiana Revised Statutes

9: 4213 provides that notice of a motion to vacate an arbitration award " shall be

served ...
as prescribed by law for service of a motion in an action," expressly

permitting the motion to be served in accordance with La. Code Civ. P. art.

1313( A) either by the sheriff or by transmitting a copy via mail or electronic means
to counsel of record.
Further, La. R.S. 9: 4205 provides that any application to the

court under the Louisiana Binding .Arbitration law shall be made and heard in the

manner provided by law for the making and hearing of motions, except as

otherwise herein expressly provided. The service effectuated by the Andersons is

proper.

For the above and foregoing reasons, the 21St Judicial District Court' s

January 30, 2024 judgment granting Karl and Courtney Anderson' s motion to

vacate an arbitration award is affirmed. Costs of the appeal are assessed to

Appellant, Schumacher Homes of Louisiana, Inc.

AFFIRMED.

11