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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kinn v. Alaska Sales & Service, Inc. (09/29/2006) sp-6055

Kinn v. Alaska Sales & Service, Inc. (09/29/2006) sp-6055, 144 P3d 474

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


INC., and KINN/SINGLETARY ) Supreme Court Nos. S- 11748/11768
) Superior Court No.
Appellants/ ) 3AN-02-13376 CI
Cross-Appellees, )
) O P I N I O N
v. )
) No. 6055 - September 29, 2006
INC., )
Appellee/ )
Cross-Appellant. )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances:  Susan E. Reeves, Anchorage, for
          Appellants  and Cross-Appellees.   Barbra  Z.
          Nault  and  Jon T. Givens, Bankston  Gronning
          O'Hara,  P.C.,  Anchorage, for  Appellee  and

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          FABE, Justice.

          This   appeal  arises  from  an  arbitration   decision
regarding  the  sale of two lots of land used for  an  automobile
dealership  in  Wasilla.   After purchasing  the  lots   and  the
dealership   located  thereon  from  Jerry   Kinn   and   Charles
Singletary,  Alaska Sales and Service brought an  action  against
them  on  the  grounds that the property was  contaminated.   The
arbitrator   partially   rescinded  the  contract   and   awarded
additional  damages  and  attorney's fees  to  Alaska  Sales  and
Service.   Kinn and Singletary appealed the arbitrator's decision
to   the   superior  court,  alleging  that  there  was  "evident
partiality"  on  the  part  of  the  arbitrator,  and  that   the
arbitrator  exceeded  his  powers  by  partially  rescinding  the
contract.  The superior court affirmed.
          Both  parties now appeal the superior court's decision.
Kinn  and  Singletary contend that the superior  court  committed
four  reversible errors: (1) holding that the arbitrator was  not
biased; (2) affirming the partial rescission of the contract; (3)
issuing  a  final  judgment under Alaska Civil Rule  54(b)  while
their  claims against other parties were still pending;  and  (4)
requiring  certain  future claims related to the  dispute  to  be
brought before the arbitrator.  Alaska Sales and Service does not
challenge  the holdings regarding partiality and rescission,  but
it  claims that the superior court erroneously decided four minor
issues that should have been remanded to the arbitrator: (1)  the
amount of attorney's fees; (2) the rate of postjudgment interest;
(3)  the  method of tender of the rescission deed;  and  (4)  the
appropriate  form of the rescission deed.  For  the  reasons  set
forth  below,  we  affirm the superior court's  decision  on  all
     A.   Background
          1.   Kinn and Singletary's acquisition of the property
          The   property  at  issue  consists  of  an  automobile
dealership,  Valley Motors, Inc., and two underlying  parcels  of
land.   According  to Kinn, he and Singletary purchased  the  two
lots,  as well as eighty percent of the dealership's stock,  with
an  option to purchase the remaining twenty percent from  Richard
Hagen  in June 1995.  In a third-party claim against Hagen,  Kinn
and Singletary assert that "Hagen represented that there were  no
violations  of  environmental  laws  or  regulations,   nor   any
liability  for  environmental damages and that the  modifications
made  to  the building and other structures, and the oil recovery
tank located on and sold as part of the Property, were built  and
installed  in  compliance  with all applicable  codes,  laws  and
regulations."   The  septic  systems,  oil-water  separator,  and
underground oil recovery tank were allegedly installed by  Hagen.
For  the  next five years, Kinn and Singletary owned the property
as tenants in common and were shareholders in Valley Motors, Inc.
Kinn  claims  that  he  "did not personally  have  any  knowledge
regarding the condition of the property."
          2.     Alaska  Sales  and  Service's  purchase  of  the
          In  December  2000 Kinn and Singletary entered  into  a
"Contract  for  Sale  of Real Property" and  an  "Asset  Purchase
Agreement"  with  Alaska Sales and Service.  The former  provided
for  the sale of the two lots underlying the dealership, and  the
latter provided for the sale of the dealership itself.  Kinn  and
Singletary claim that Alaska Sales and Service originally  sought
to  purchase only the dealership, but that they refused  to  sell
the dealership without also selling the land.
          3.    Alaska  Sales  and Service's discovery  that  the
property was contaminated
          Several  months after acquiring the land, Alaska  Sales
and Service discovered that the property had been contaminated by
used  motor  oil,  which  had overfilled  the  underground  tank,
migrated  through  the oil-water separator, and contaminated  the
septic  system.  There were also illegal surface spills, some  of
which the arbitrator found that Singletary attempted to conceal.1
The  Alaska  Department  of Environmental  Conservation  and  the
federal Environmental Protection Agency had not been notified of,
and did not approve, the design of the oil and septic system.
          After  discovering that the property was  contaminated,
Alaska Sales and Service requested that Kinn and Singletary "take
all  necessary actions to immediately resolve the problem[]"  and
sought  to  be  indemnified  for  expenses  associated  with  the
contamination.   These demands, and Alaska  Sales  and  Service's
subsequent request to rescind the contract, were rejected.
     B.   Proceedings Before the Arbitrator
          1.   Alaska Sales and Service's lawsuit
          In  December 2002 Alaska Sales and Service  brought  an
action against Kinn and Singletary, asserting a number of claims,
including misrepresentation and breach of contract.  Alaska Sales
and  Service's  complaint  also sought enforcement  of  the  real
estate  contract's arbitration provision, and in March 2003  Kinn
and  Alaska Sales and Service agreed to arbitration.2  Singletary
did not sign the stipulation regarding arbitration, but he was  a
party  to the original contract providing for arbitration.   Kinn
and  Singletary brought a third-party claim against Hagen in  May
2003,  but  this claim was not included in the arbitration.   The
arbitrator  who  heard  the  case was Paul  Davis,  an  Anchorage
          2.   Factual findings regarding contamination
          The  dispute was arbitrated in 2003, and the arbitrator
issued  findings of fact, conclusions of law, and a final  award.
He   subsequently  issued  supplemental  findings  of  fact   and
conclusions of law, a revised final award, and a summary  of  all
awards.   The initial findings of fact stated that both lots  had
been contaminated in violation of federal and state environmental
laws,   and   that   Kinn  and  Singletary   had   "intentionally
misrepresented substantial and material historical  environmental
events  that  Mr.  Singletary had direct, personal  knowledge  of
.  .  . for the purpose of causing [Alaska Sales and Service]  to
enter into the transactions."  The arbitrator further found  that
both  the  real estate contract and the asset purchase  agreement
contained  misrepresentations  about  whether  the  property  was
contaminated, and that Alaska Sales and Service reasonably relied
on the misrepresentations.
          In addition to liability under contract, the arbitrator
found  that  each of the defendants had violated AS 46.03.822(a),
          which imposes strict liability for the costs "resulting from an
unpermitted   release  of  a  hazardous   substance."    As   the
arbitrator's  opinion noted, "the actions of  Mr.  Singletary  in
directing employees to shovel up the oiled gravel, place it  into
opaque  bags,  deposit[] the bags at the dump and  replac[e]  the
removed  gravel  with  clean  gravel  taken  from  a  river   bed
represent[]  an  intentional violation of  state,  federal,  and,
probably, local environmental laws."
          3.   Allocation of responsibility
          The arbitrator found that "Mr. Kinn's sins were more of
omission  rather  than  commission," but  noted  that  "Kinn  and
Singletary were equally irresponsible" in their management of the
land  because  neither  of them "made any  effort  whatsoever  to
understand  the  functioning  of what  they  owned  or  what  the
infrastructure's  capabilities and weak points  were."   Although
Kinn  and  Singletary denied the existence of a partnership,  the
arbitrator  found  that  they  had  been  partners  during  their
ownership of the property, and that, "[a]s partners[,] . . .  Mr.
Kinn  and  Mr. Singletary are individually jointly and  severally
liable  for Mr. Singletary's acts and omissions."3  But elsewhere
in  the opinion, the arbitrator noted that each had the right  to
pursue a contribution claim from the other in superior court.4
          4.   Award
          Noting  that  rescission is available for a  party  who
enters   a   contract  based  on  justifiable   reliance   on   a
misrepresentation, the arbitrator discussed the  merits  of  this
          Although  I  would have the power  to  reject
          rescission  and  award  that  the  defendants
          [Kinn and Singletary] pay all future clean-up
          costs,  I  believe doing so would  create  an
          almost   unmanageable  situation  where   the
          defendants  would  challenge  many   of   the
          decisions made by [Alaska Sales and  Service]
          .  .  .  .   Should  that  be  so,  we  could
          confidently  expect that  the  parties  would
          have  to again and again return to the  court
          to  seek  enforcement of my  award,  all  the
          while generating even more attorney['s]  fees
          and   costs.   Because  a  legal  remedy   is
          uncertain, I find rescission to be the better
          Rescission  seems to be the only fair  relief
          that  can  be given because of the degree  of
          speculation that all of the parties have  had
          to   engage  in  up  to  this  point  in  the
          litigation.    There   are   a   number    of
          significant unknowns concerning the extent of
          contamination and the amount of future  costs
          for     investigation,    evaluation,     and
          remediation and monitoring.
The  arbitrator  also noted that, "insofar as the defendants  are
concerned,   rescission  will  allow  them  to  take   over   the
remediation of the land on their own terms."
          The  arbitrator  therefore rescinded  the  real  estate
contract  and ordered the defendants to "repay . . . the purchase
price  of  the  property,  less the reasonable  rental  rate  for
[Alaska Sales and Service's] use of the property since January 1,
2001  for a total of $1,211,928.00."  As noted in the summary  of
all  awards,  the defendants were also required  to  pay  several
other   types   of  damages:  (1)  "[r]escission  [t]ransactional
[d]amages"  of  $67,060.00; (2) ongoing  "rescission  damages  of
interest," which amounted to $308,209.70 as of July 15, 2003; (3)
100%  of  the  ongoing costs of cleaning up  Lot  3;  (4)  eighty
percent  of  the ongoing costs of cleaning up Lot 7;  (5)  Alaska
Sales  and Service's costs in bringing the action, including  but
not  limited  to  litigation attorney's fees of $181,782.50;  (6)
additional  post-award litigation and cleanup costs  incurred  by
Alaska  Sales and Service; (7) pre- and post-award interest;  and
(8)  the  arbitrator's fee.  Alaska Sales and Service was ordered
to  pay  rent  of $15,968.00 a month and all utilities  while  it
continued to occupy the land, and was also required to pay twenty
percent of the cleanup costs of Lot 7.
          5.   Allegation of partiality
          In  August  2003, shortly after arbitrator  Paul  Davis
issued  his  supplemental findings, attorney  Susan  Reeves  sent
Davis  a  letter  claiming  that  she  had  recently  learned  of
undisclosed  ties  between Davis and Bill Bankston,  counsel  for
Alaska Sales and Service.  In her capacity as counsel to Kinn and
Singletary,  Reeves requested that Davis "disclose  and  describe
any  business dealings that you presently have, have had  in  the
past  year, or anticipate in the next 6 months, with Mr. Bankston
or his law firm."
          Davis sent a letter to Reeves and Bankston stating that
he had had prior dealings with the firms representing both sides.
He  and  Bankston had both been involved in Veco Alaska, Inc.  v.
Alaska Electric Generation & Transmission, Inc., a case that  was
settled  in  January 2003.  Davis explained  that  he  "acted  as
counsel  for a codefendant to Mr. Bankston's client,"  and  noted
that "[a]lthough our clients were aligned, there were independent
interests of my client that were separate from the interest[s] of
Mr.  Bankston's  client."5  He pointed out  that  there  was  one
remaining  "collateral matter," and that if that matter developed
into  litigation,  "Mr.  Bankston  and  I  will  be  representing
opponents."  In addition, Davis noted that he referred bankruptcy
cases  to  a  partner of Bankston "from time to time,"  and  that
Davis's  partner,  Ron Black, had recently  referred  a  case  to
Bankston's  office  because  of a conflict  of  interest.   Davis
maintained that he "d[id] not have reason to anticipate that  Mr.
Bankston  will refer any other cases to me during  the  next  six
          Davis's  letter  also discussed his dealings  with  Tom
Amodio, a member of Reeves's firm.  Davis described Amodio as  "a
friend  of  mine, in much the same manner that Mr.  Bankston  has
been,"  and  noted  that  Amodio's wife, Debra  Fitzgerald,  "has
performed substantial (and uniformly excellent) legal work for me
          on and off for close to twenty years, and I hold her as a close
friend,  even  closer than either Mr. Amodio  or  Mr.  Bankston."
Amodio had referred several cases to Davis in the past, including
one  that  had settled in the previous year, and Davis "ha[d]  no
reason  to  think that either Mr. Amodio will or will  not  refer
cases  to me within the next year."  Davis also asserted that  he
had  used  space in Reeves's and Amodio's firm to prepare  for  a
trial  when his own firm was in the process of moving.   Finally,
Davis  maintained  that  he  had been approached  to  handle  the
present  case by both Bankston and Amodio, and that, although  he
"was  long time friends with both attorneys, had referred  and/or
been  referred  by  both, and had personal dealings  with  both,"
neither  side  had  raised doubts about  his  partiality  at  the
          In response to this letter, Reeves requested additional
information about Davis's work in Veco, including the amount that
Davis's  firm  had  billed in that case, and  whether  Davis  had
spoken  with  Bankston about Veco during the arbitration  of  the
present  case.  Although Reeves claims never to have  received  a
response,  the  excerpt contains a letter  from  Davis  answering
Reeves's questions.  In addition to discussing his work  in  Veco
in  greater  detail,  Davis  noted  that,  when  negotiating  his
retainer  with the attorneys in the present case,  he  "told  the
group  that  because  all of them were my  friends  I  would  not
require  that  more  [than one day's fees] be deposited."   Davis
addressed the issue whether he was biased toward Bankston because
of his work in Veco as follows:
          Although not solicited by you, it is clear to
          me that you or your client are concerned that
          I   might  have  loyalties  to  Mr.  Bankston
          arising  out of the Agrium6 case.  I want  to
          make  it perfectly clear that Agrium was  not
          referred  to me by Mr. Bankston or anyone  in
          his  office.  Agrium was referred  to  me  by
          Rick  Baldwin  .  . . .  Just  prior  to  the
          referral  to  me,  Mr. Baldwin's  firm  found
          themselves   in  a  conflict   because   they
          represented both AEG&T and Agrium which, as I
          outlined  above,  had conflicting  interests.
          Because  of the conflict situation  his  firm
          was  in, it was decided that the AEG&T client
          would  be referred to Mr. Bankston's  office,
          and the Agrium client would be referred to my
          office.   I  owe nothing to Mr. Bankston  for
          that  referral[;] he, along with myself, were
          the  beneficiaries of Mr. Baldwin's judgment.
          If  you  have  any questions in this  regard,
          please call Rick Baldwin . . . and I am  sure
          he will confirm what happened.
          Finally, in support of her argument that Davis was  not
impartial,  counsel  for  Kinn  and  Singletary  points   to   an
advertisement  for a continuing legal education program  held  in
September  2003, which was coordinated by Bankston.  The  program
featured  Davis  as  one  of  two  Anchorage  attorneys  on   the
          plaintiff's team in a mock trial.  C.   The Superior Court's
          1.   Ruling on Kinn and Singletary's appeal
          In  October  2003  Kinn  and  Singletary  appealed  the
judgment  of the arbitrator to the superior court, alleging  that
Davis  had  exceeded  his powers by rescinding  the  real  estate
contract,  had displayed "evident partiality," and had "exhibited
a  manifest disregard of the law" in his decision.  Alaska  Sales
and Service moved for confirmation of the arbitration award.   In
May 2004, after oral argument, the superior court issued a ruling
from  the  bench confirming the award.  The court held  that  the
rescission was within the arbitrator's authority, stating that "I
.  .  .  don't  find merit to the defendants' argument  that  the
arbitrator  could not rescind only the contract for the  sale  of
real  property and leave the asset purchase agreement in  place."
The  court also determined that Davis and Bankston did  not  have
the  type of relationship that required disclosure to the parties
and  emphasized  that  "the  vast majority  of  cases  that  have
discussed whether there is evident partiality are concerned  with
th[e]  financial interest that parties could - that  the  parties
might  have  or  the lawyers might have with  the  arbiter."   In
addition,  the  court  observed  "that  this  is  a  small  legal
community, [and] that you do tend to cross paths with just  about
everyone  during the course of practicing here for decades  at  a
time  as  Mr.  Davis  has done."  Concluding that  there  was  no
"indication  in  the  record that Mr.  Davis  had  any  interest,
financial,  personal or otherwise in the outcome of  the  dispute
here," the court held that there was no evident partiality on the
part of the arbitrator.
          2.   Civil Rule 54(b) order for final judgment
          In accordance with the court's ruling, Alaska Sales and
Service  moved for entry of final judgment under Alaska  Rule  of
Civil  Procedure  54(b).  Noting "Mr. Kinn's asset  transfers  in
recent  years," and specifically holding "that delaying entry  of
final judgment pursuant to the arbitration award, pending a trial
between Hagen [and Kinn and Singletary] (on an unrelated sale  of
real  estate  which occurred years previous to the  Alaska  Sales
purchase) would cause undue delay," the court granted the  motion
in June 2004.
          Kinn and Singletary appeal the superior court's rulings
that  the  arbitrator did not display evident bias, that  partial
rescission  was  within  the  arbitrator's  powers,  that   final
judgment  should  issue  while the third-party  claim  was  still
pending,   and   that  certain  future  disputes  regarding   the
implementation of the final judgment should be submitted  to  the
arbitrator.   Alaska  Sales and Service  cross-appeals,  claiming
that the superior court erroneously decided four issues regarding
the award that should first have been decided by the arbitrator.
     A.   Standards of Review
          1.   Issues on appeal
          We review de novo a superior court's decision to affirm
an  arbitration award.7  But "[t]he arbitrator's findings of both
fact and law . . . receive great deference"8 and "as a matter  of
          both policy and law, we are `loathe to vacate an award made by an
arbitrator.' "9  Where one party alleges that the arbitrator  has
exceeded  his  or her authority, we will affirm the  arbitrator's
conclusion  as  to  the  scope of  his  or  her  powers  if  "the
arbitrator's conclusion is reasonably possible."10  An  entry  of
final  judgment  under  Rule  54(b)  is  reviewed  for  abuse  of
          2.   Issues on cross-appeal
          A  superior court's decision whether a particular issue
is  arbitrable - an issue underlying all of the objections raised
by  Alaska  Sales and Service on cross-appeal -  is  reviewed  de
novo.12   A  trial court's award of attorney's fees is reviewable
for an abuse of discretion.13 The postjudgment rate of interest is
set  by  statute,  and  a superior court's  application  of  this
statute is a question of law that we review de novo.14
     B.   Evident Partiality
          Kinn   and   Singletary  raise  two  related  arguments
regarding the alleged partiality of the arbitrator.  First,  they
argue  that,  under the arbitration provision  in  the  contract,
Davis  was  bound to follow the American Arbitration  Association
(AAA)/American  Bar  Association Code of  Ethics  for  Commercial
Arbitrators and that these rules required disclosure  of  Davis's
ties  with  opposing counsel.15  Second, they  argue  that  Davis
showed  "evident partiality," listed in AS 09.43.120(a)(2)  as  a
ground  for  vacating  an arbitration result.16   Both  of  these
arguments turn on whether the relationships that Davis  had  with
counsel   for  Alaska  Sales  and  Service  were  the   type   of
relationships  that  could  raise  reasonable  doubt  as  to  his
          1.    Is  failure to disclose under the  AAA  Rules  an
appealable issue?

          As  Kinn  and  Singletary point  out,  the  arbitration
clause in the property contract specified that the arbitration be
"in  accordance  with the Rules and Procedures  of  the  American
Arbitration Association."  Canon II of the AAA Code of Ethics for
Arbitrators in Commercial Disputes states that "[p]ersons who are
requested  to  serve  as  arbitrators should,  before  accepting,
disclose  .  . . any known existing or past financial,  business,
professional  or  personal relationships which  might  reasonably
affect impartiality or lack of independence in the eyes of any of
the parties."17  The AAA Commercial Arbitration Rules specify that
an  arbitrator must "disclose to the AAA 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."18    The   AAA   is   then   responsible    for
"communicat[ing] the information to the parties and, if it  deems
it  appropriate  to  do  so,  to the  arbitrator  and  others."19
Although Alaska Sales and Service may be correct in arguing  that
the  AAA  Code of Ethics, standing alone, does not create grounds
for  appeal,20  neither  party claims that  Davis  disclosed  his
relationship  to the AAA.  For this reason, if the  relationships
          that Davis failed to disclose were "likely to give rise to
justifiable  doubt as to [his] impartiality,"21  his  failure  to
disclose  would  not only have been a violation of  the  Code  of
Ethics,  but  also of the AAA Rules specifically invoked  in  the
arbitration clause.  Having raised the issue before the  superior
court, Kinn and Singletary can therefore raise it here.
          2.    Did Davis's ties with Bankston constitute evident
          Alaska   Statute  09.43.120(a)(2),  like  the   federal
Uniform  Arbitration Act, provides that a court  must  vacate  an
arbitration  award  if  there  was  evident  partiality   by   an
arbitrator.22  In determining whether evident partiality  exists,
federal courts have applied a similar analysis to the one  called
for  by  the  AAA  Rules.23  As Justice  White's  concurrence  in
Commonwealth  Coatings Corp. v. Continental Casualty  Co.  points
out,  this  standard  does not treat all connections  between  an
arbitrator and a party as grounds for finding evident partiality.24
Rather,  it  focuses on whether the relationship  would  cause  a
reasonable  person to doubt the impartiality of  the  arbitrator,
particularly on the grounds of "some financial interest or  other
loyalty owed to one side of the dispute."25  Federal courts,  and
state  courts  interpreting similar provisions, have  articulated
different  versions  of this standard, with some  courts  finding
evident   partiality   where   arbitrators   fail   to   disclose
relationships that would lead a reasonable person to believe that
a   conflict  actually  exists,26  and  others  finding   evident
partiality  where the information not disclosed by the arbitrator
would  lead a reasonable person to believe that a conflict  could
exist.27   Other  versions of this standard do  not  address  the
distinction  between  actual and potential  conflicts  at  all.28
Although  we  have previously decided an appeal alleging  evident
partiality, we have not specifically determined which version  of
the standard to adopt.29  But we need not do so here, because the
result will the be same under any version of the standard.
          Even   if  evident  partiality  is  found  whenever   a
reasonable  person  would have the impression  that  there  could
potentially be a conflict - a standard coextensive with what  AAA
Rule 16 requires arbitrators to disclose - the ties between Davis
and  Bankston  do  not  rise to the level of evident  partiality.
Kinn  and  Singletary  have  made no  showing  of  any  financial
interest or other loyalty that would predispose Davis to rule  in
favor  of  Bankston.  Indeed, Kinn's attorney clarified  at  oral
argument that "[w]e are not arguing that [Davis and Bankston] had
a  financial  relationship."   Without  a  showing  of  financial
interest  or  a  similar reason for loyalty to one side,  Davis's
having  represented  a  different client  in  the  same  case  as
Bankston would be unlikely to constitute evident bias even  in  a
large legal community, and it certainly does not constitute it in
a  legal community as small as Anchorage.30  If the opposite were
true, the most experienced members of the Anchorage bar would  be
effectively disqualified from acting as arbitrators, and it would
be difficult to find any arbitrator at all for some disputes.31
           Similarly,  the  occasional  referral  of  cases  from
Bankston's office to Davis's office, and vice versa, based on the
specialties of the attorneys in those offices does not  establish
that  Davis  had reason to be partial.32  Exclusive  or  frequent
referrals, or referrals made for substantial consideration, could
raise  serious doubts as to an arbitrator's partiality,  but  the
referrals here appear to have been infrequent and nonexclusive.33
Moreover,  Kinn  and Singletary do not claim that  the  referrals
created a financial interest on the part of Davis.
          Davis's  participation in a bar  event  coordinated  by
Bankston  is equally unpersuasive as evidence of partiality.   As
other states' courts have noted, participation or leadership in a
professional  organization's  activities  does  not   necessarily
create  an  impression of bias.34  Nor is participation  in  that
organization's  activities or leadership.35   Furthermore,  every
practicing  lawyer in this community is a member of  one  of  the
sponsors  of  the  "Masters in Trial" program -  the  Alaska  Bar
Association.   A  holding  that  participation  with  a   party's
attorney  in  this organization's activities constituted  evident
bias  would  make it difficult for parties in Anchorage  to  find
qualified  arbitrators for their disputes and, for those  lawyers
interested in acting as arbitrators, would severely restrict  the
available range of professional enrichment activities.
          Finally,   the  overall  context  of  Davis's   alleged
partiality includes not only his relationships with Bankston, but
also  his  relationships with counsel for Kinn and  Singletary.36
Davis  appears to have had a professional relationship  with  the
spouse  of  Amodio, an attorney representing Kinn and Singletary,
that  was  significantly closer than his dealings with  Bankston.
In  contrast  to  his work representing a co-party  in  Veco  and
occasional referrals to and from Bankston, Davis maintains in his
first   letter  to  Reeves  that  Amodio's  wife  "has  performed
substantial  .  .  . legal work for me on and off  for  close  to
twenty  years," and that his law firm's "billing system has  only
recently been updated to take [her] name out of it."  Davis  also
noted  that  he  "had  referred and/or  been  referred"  by  both
Bankston  and Amodio.  The fact that Davis had similar,  or  even
closer,  ties with Amodio makes it even less likely that  he  was
partial  toward Bankston's client. Because Davis had professional
contacts  with both sides, none of which could reasonably  create
an  impression  of  evident partiality, we  affirm  the  superior
court's holding on this issue.
     C.   Scope of the Arbitrator's Authority
          Kinn  and Singletary argue that the arbitrator exceeded
the  scope  of  his  authority  under  AS  09.43.120(a)(3)37   by
rescinding  the  property contract, but not  the  asset  purchase
agreement.    But  the  question  whether  Kinn  and   Singletary
successfully negotiated for a single contract (as opposed to  two
separate  contracts) is a question of fact, and the determination
whether rescission is an appropriate remedy and, if so, how  that
remedy should be applied, is a question of law.  As Alaska  Sales
and   Service  correctly  points  out,  we  apply  an   extremely
deferential  standard of review to the arbitrator's decisions  on
questions  of  fact  and law: under Alaska's Uniform  Arbitration
Act, "the arbitrator's findings of fact are unreviewable, even in
the  case of gross error," and the arbitrator's legal conclusions
          are equally unreviewable, except where they pertain  to
arbitrability.38   Claims  that  the  arbitrator  construed   the
contract  in a manner exceeding his or her powers are reviewable,
but will only be reversed "if all fair and reasonable minds would
agree  that  the  construction  of  the  contract  made  by   the
arbitrator(s) was not possible under a fair interpretation of the
           Kinn  and  Singletary point to our holding  that  "[a]
contract is severable . . . when it is of such a nature  that  it
is  clear  that  the  formation of the contract  itself  was  not
dependent on all of its parts together, but rather that it  could
just  as  well  have  been  entered  into  as  several  different
agreements."40   They also rely on the rule of construction  that
"[w]here   two   or  more  contractual  documents  are   executed
substantially  simultaneously and are clearly interrelated,  they
must be construed as the whole contract."41  But whether and  how
these  rules apply to the interpretation of the contract  in  the
present  case  are questions of law, as is the  question  of  the
appropriate remedy.  Although this court might reach a  different
result  if  it  interpreted  the  contract  on  the  merits,  the
arbitrator's interpretation is not so obviously wrong  that  "all
fair  and reasonable minds"42 would find it impossible under  the
terms  of  the  contract.  The parties themselves provide  strong
support  for  this view: each of their briefs contains  a  lucid,
detailed  argument  - relying on authority from  this  and  other
jurisdictions  -  that the party's preferred  interpretation  and
remedy  are  the ones required by Alaska law.  Because reasonable
minds  can  differ  on  whether the  arbitrator  interpreted  the
contract(s) in a manner that exceeded his powers, we  affirm  the
superior court's decision on this issue.
     D.   Issuance of the Rule 54(b) Judgment
          Kinn  and Singletary argue next that the superior court
erred  in  issuing a Rule 54(b) judgment while they were pursuing
relief against a third party.  Alaska Civil Rule 54(b) carves out
an  exception to the general rule that appeals "may be taken only
after the entire case is disposed of on all substantive issues,"43
providing that
          [w]hen  more  than one claim  for  relief  is
          presented in an action, whether as  a  claim,
          counterclaim,  cross-claim,  or   third-party
          claim, or when multiple parties are involved,
          the  court  may direct the entry of  a  final
          judgment as to one or more but fewer than all
          of the claims or parties only upon an express
          determination  that there is no  just  reason
          for  delay and upon an express direction  for
          the entry of judgment.
Entry  of final judgment under Rule 54(b) is "[t]ypically .  .  .
appropriate  only  if  the party seeking judgment  is  likely  to
suffer actual hardship otherwise."44
           Although  Kinn and Singletary claim that the  superior
court  "did not find that [Alaska Sales and Service] would suffer
any  hardship  if  the  [c]ourt did not grant  the  [R]ule  54(b)
motion,"  the  court's  initial  Rule  54(b)  order  specifically
identified the harm of "undue delay in enforcement of arbitration
awards."45  The court also noted that delaying judgment "would be
contrary  to both the parties' express agreement for arbitration"
and,  more  broadly, that such a delay "could discourage  parties
from  engaging in arbitration and would delay the aggrieved party
their rights."
          The delay at issue would hinge on the third-party claim
brought  by Kinn and Singletary against Hagen, for which "[t]rial
[was]  scheduled to begin in March, 2006."  Hagen, in  turn,  has
brought  a  third-party  claim  against  Cliff  Bond,  d/b/a  M&B
Plumbing  and  Heating, who has brought yet  another  third-party
complaint  against  David Heusser.  If Hagen successfully  argues
that  resolution of his claim depends on resolution  of  his  own
third-party claim, and this pattern applies to subsequent  third-
party  claims, judgment could be delayed indefinitely.46  Because
the arbitrator resolved the present dispute without resolving the
claim   against   Hagen,   and  specifically   found   that   the
Kinn/Singletary   partnership   had   illegally   concealed   and
contributed  to the contamination of the lot, resolution  of  the
claim  against Hagen does not appear to be necessary  to  resolve
any  of the substantive issues in this case.  Thus, the harm that
Alaska  Sales and Service would experience without a  Rule  54(b)
order  is  obvious:   Judgment would  be  unnecessarily  delayed,
pending  the resolution of a third-party claim that has  not  yet
even  gone  to  trial.   For this reason, we  conclude  that  the
superior court did not abuse its discretion in entering  a  final
judgment under Rule 54(b).
     E.    The Superior Court's Remand of Future Disputes to  the
          The  final  argument raised by Kinn and  Singletary  is
that  the  superior court in its Revised Entry of Final  Judgment
erred  by  remanding future disputes regarding the interpretation
of  the  award to the arbitrator.  Kinn argues that such a remand
is   inconsistent   with  the  language  of   our   decision   in
International Brotherhood of Electric Workers, Local  Union  1547
v.  City of Ketchikan,47 which emphasized the "fundamental common
law  principle that once an arbitrator has made and  published  a
final  award, the arbitrator's authority is exhausted and  he  or
she  can  proceed  no  further"48 and held that  "remand  [of  an
arbitrator's  award]  is  appropriate only  where  the  award  is
patently   ambiguous."49   But  many  jurisdictions  now   permit
arbitrators to exercise limited, continuing jurisdiction over the
issues  that  they were initially responsible for adjudicating.50
Indeed,   the   2003  edition  of  the  treatise  Elkouri:    How
Arbitration Works, which we cited in IBEW, states that
          [t]he    arbitration   process    does    not
          automatically  end  in those  cases  where  a
          grievance  has  been sustained  and  where  a
          remedy has been ordered.  Questions over  the
          application  of a remedy can arise  after  an
          arbitration award has been issued,  which  is
          why   arbitrators   may  decide,   at   their
          discretion, to retain limited jurisdiction to
          resolve any such remedial issues.[51]
Thus,  our  dicta in IBEW should not be interpreted  to  prohibit
arbitrators  from retaining limited jurisdiction to  ensure  that
their awards are carried out properly.
          Here,   the  arbitration  award  provided  that  "[a]ny
further  disputes  between these parties as  to:   the  terms  of
rescission, remediation and expenses of remediation on Lot 7 .  .
.   calculation  of  pre-award  or  post-award  interest,  future
attorney's  fees and costs or interpretation of these awards  may
be  submitted to the undersigned [(Davis)] for resolution."   Far
from  reopening  issues  that  had  already  been  decided,   the
arbitrator was simply offering to resolve any ambiguities in  the
award and ensure the enforcement of the award.  This is precisely
the  type  of limited jurisdiction that other courts  now  permit
arbitrators  to  retain.52  For this reason,  we  hold  that  the
superior  court did not abuse its discretion in permitting  Davis
to retain limited continuing jurisdiction.
     F.   Alaska Sales and Service's Cross-Appeal
          On  cross-appeal, Alaska Sales and Service argues  that
the  superior court erred by failing to remand four issues to the
arbitrator:  (1)  attorney's fees and costs for  the  proceedings
before  the  superior court; (2) the postjudgment interest  rate;
(3)  the  method of tender of the rescission deed;  and  (4)  the
proper  form of the rescission deed.  Although an arbitrator  may
retain  jurisdiction, such jurisdiction is generally  limited  to
"[q]uestions over the application of a remedy,"53 the  resolution
of  which is necessary to ensure compliance with the award.54   A
superior  court  need not remand issues that  have  already  been
resolved unambiguously, or that are only tangentially related  to
the award.55  For this reason, whether the superior court erred by
failing  to  remand  these issues depends on whether  remand  was
necessary to ensure that the award be carried out properly.
          1.   Attorney's fees and costs
               a.   Whether the arbitration award was ambiguous
          Alaska Sales and Service first claims that the award of
attorney's fees and costs during the confirmation process  should
have  been decided by the arbitrator, noting that the arbitration
provision  in  the  contract gives the  arbitrator  authority  to
"assess the
costs of arbitration, including legal/accountant's fees and costs
against the non-prevailing party."  The arbitrator exercised  his
power  to "assess the costs for arbitration" under this provision
in  a  detailed, and unambiguous, section of the summary  of  all
          But  the  award of fees and costs made by the  superior
court  did  not  involve  the costs of arbitration  and  did  not
implicate  any  ambiguous  portion  of  the  arbitrator's  award.
Because  it  was an award for costs incurred only in  proceedings
before  the  superior  court, after the  arbitrator  had  already
issued  his  opinion, it fell entirely outside the scope  of  the
arbitrator's  award.   This  is  explicitly  recognized   by   AS
09.43.140,  which provides that "[c]osts of the  application  [to
confirm  or  modify an arbitration award] and of the  proceedings
          subsequent to the application, and disbursements may be awarded
by the court."
               b.   The superior court's decision
          Alaska  Sales  and  Service  further  claims  that  the
superior court erred by failing to grant it full attorney's  fees
and  costs when the arbitration clause required the full cost  of
arbitration to be paid by the non-prevailing party.56   As  noted
above,  the proceedings in the superior court were separate  from
the arbitration proceedings.  This court held in Marathon Oil Co.
v.  ARCO  Alaska, Inc. that where the language of the  attorney's
fee  clause "suggests that the parties were referring only to the
arbitration  itself  when they agreed  to  each  bear  their  own
costs,"57   the   clause  does  not  apply  to   post-arbitration
proceedings.  The same conclusion applies to this case,  for  the
applicable clause in the arbitration agreement states  that  "the
arbitrator  shall  assess  the costs  of  arbitration,  including
legal/accountant's  fees  and costs  against  the  non-prevailing
party."  The parties argue extensively about whether the superior
court should have followed Alaska Civil Rule 82 in awarding fees,
but  AS  09.43.140 gives the superior court broad  discretion  to
award,  or  decline  to award, fees in confirmation  proceedings.
Granting  post-arbitration attorney's  fees  in  accordance  with
Civil  Rule 82 was appropriate,58 and for this reason, we  affirm
the award of attorney's fees.
          2.   Postjudgment interest
          Alaska  Sales and Service next argues that the superior
court  erred  in  following the arbitrator's  decision  to  award
postjudgment  interest at 3.75% per annum because "[t]he  arbiter
did  not  establish a post[]judgment interest  rate  or  indicate
whether the post-award rate should apply if the award was reduced
to  judgment."  But, as Kinn and Singletary correctly  note,  the
arbitrator's award of 3.75% interest until all amounts were  paid
effectively  established this as the postjudgment interest  rate.
The  superior  court's  award of  3.75% postjudgment  interest  -
relative  to  the  arbitrator's judgment, not  its  own59  -  was
therefore nothing more than a confirmation of this portion of the
arbitrator's decision.  Because Alaska Sales and Service has  not
established  that  there was any ambiguity  in  the  arbitrator's
decision,  or  that remand is necessary to properly  enforce  the
award, we hold that the superior court did not err in adhering to
the arbitrator's postjudgment interest rate.
          3.   Method of tendering the rescission deed
          Alaska  Sales and Service alleges that the  portion  of
the  arbitrator's award specifying how the deed of rescission  is
to  be  tendered was ambiguous, and that the superior court erred
by  choosing a particular method of tender.  The superior court's
revised  final  judgment states that "once [d]efendants,  or  any
individual   or  combination  of  [d]efendants,  have   partially
satisfied  this  judgment  by paying [the  purchase  price  minus
accrued  rents],  Alaska  Sales shall  execute  a  warranty  deed
conveying  title  to the defendant or defendants  who  paid  this
judgment for the two parcels of real property."
          The  relevant portion of Davis's decision  stated  that
"[t]he  property must be deeded back to [Kinn and Singletary]  by
          warranty deed," and ordered Kinn and Singletary to "repay the
plaintiffs the purchase price of the property."60  In the summary
of  all  awards,  the arbitrator commented in  a  footnote  that,
"until there is a closing for the return of the property, and the
amounts  awarded to [Alaska Sales and Service] are paid, interest
will  continue to accrue at the rates I awarded."61  Alaska Sales
and  Service  claims that this is ambiguous because it  does  not
indicate whether the entire award must be paid at the time of the
closing,  or just the purchase price of the property.   But  this
footnote  actually draws a distinction between the "closing"  and
the  payment  of  interest on remaining unpaid  sums.   For  this
reason,  the language of the arbitration award was not ambiguous,
and  remand  is not necessary for the proper enforcement  of  the
award.62   Since  the  superior court's  order  does  not  differ
materially from the arbitrator's order with regard to the  method
of  tender, we affirm the judgment of the superior court on  this
          4.   Form of the rescission deed
          Finally,  Alaska  Sales  and Service  claims  that  the
definition  of  the term "property" that the arbitrator  directed
the parties to use in the rescission deed is ambiguous and should
be  remanded to the arbitrator.  Specifically, the definition  of
"property"  used in the original property contract, and  used  by
the   superior   court,  includes  "all  of   the   improvements,
structures, fixtures, facilities, installations and equipment in,
on[,]  over  or  under the [l]and."  Although  Alaska  Sales  and
Service  claims  that this creates tension with the  arbitrator's
award,  the  arbitrator's discussion of this issue  is  perfectly
consistent  with  both  the  contract and  the  superior  court's
revised final judgment:
          VMI  requests  that  the  definition  of  the
          "property" to be returned to it in rescission
          include  the fixtures.  "Property,"  as  that
          word  is used in Paragraph 45 of the award[,]
          is  defined as it is in the Contract for Sale
          of   Real   Property.   However,   personalty
          attached  to the property sold separately  by
          Mr.  Kinn,  Mr. Singletary or VMI to  [Alaska
          Sales and Service] from the sale of the  real
          estate  would not, of course, be part of  the
          rescission; unless the consideration paid  by
          [Alaska  Sales and Service] for  these  items
          was returned as well.
The arbitrator simply held that a particular category of personal
property - items unrelated to the underlying real property63 that
had  been treated separately in the first transaction - would  be
treated the same way in the rescission deed.  The enforcement  of
this  portion  of  the award does not require  a  remand  to  the
arbitrator,  as  no  ambiguity is evident  on  the  face  of  the
statement, and the superior court's use of the original  contract
language does not conflict with the arbitrator's legal conclusion
regarding the appropriate award.  For this reason, we affirm this
portion of the superior court's  decision.
          For the reasons set forth above, we AFFIRM the judgment
of the superior court.
     1     The  arbitrator  found  that  Singletary's  denial  of
knowledge  of  the surface spills was "not at all credible,"  and
further found that Singletary had "direct[ed] employees to shovel
up  the  oiled  gravel, place it into opaque bags, deposit[]  the
bags  at  the  dump and replac[e] the removed gravel  with  clean
gravel taken from a river bed."
     2      The   arbitration  provision  specified  that  "[a]ll
disputes  shall be resolved by a single arbitrator in  accordance
with  the  Rules  and  Procedures  of  the  American  Arbitration
Association pertaining to commercial disputes."
     3     The  question  whether a partnership  existed  is  not
disputed in this appeal.
     4     According to the appellants, Singletary has no assets.
Singletary maintained in a January 2004 affidavit that  the  sale
of the business was "financially devastating for [him]," and that
he had only been employed for a total of six weeks in 2003.
     5     Davis  stated that he "underst[oo]d that Mr.  Bankston
did recommend me, but the case was in fact referred to me by Rick
Baldwin, an attorney in Kenai."
     6    Davis's client in Veco was Agrium U.S.
     7     Marathon Oil Co. v. ARCO Alaska, Inc., 972  P.2d  595,
600  (Alaska  1999); see also Ahtna, Inc. v. Ebasco Constructors,
Inc.,  894 P.2d 657, 660 (Alaska 1995) (reviewing de novo a lower
court's decision regarding an arbitration award).
     8    Ahtna, 894 P.2d at 660.
     9     Id.  (quoting Dep't of Public Safety v. Public  Safety
Employees Ass'n, 732 P.2d 1090, 1093 (Alaska 1987)).  As noted by
the  Ahtna  court, this court's review focuses  on  questions  of
arbitrability,  not  on  whether  the  arbitrator  construed  the
contract in the way that this court would have construed it.  See
Butler v. Dunlap, 931 P.2d 1036, 1039 (Alaska 1997) (noting  that
"there  are  no  statutory grounds for review of an  arbitrator's
determination as to the meaning of contract provisions  which  do
not  pertain to the issue of arbitrability"); Ahtna, 894 P.2d  at
661  (stating that "an arbitrator's misconstruction of a contract
is   not  open  to  judicial  review,  except  on  questions   of
     10    Marathon, 972 P.2d at 600.
     11    Williams v. Mammoth of Alaska, Inc., 890 P.2d 581, 586
(Alaska 1995).  Kinn and Singleton argue that their fourth  issue
on  appeal,  "whether the [s]uperior [c]ourt erred in  issuing  a
[f]inal [j]udgment requiring that future disputes relating to the
implementation of certain provisions of the [f]inal [j]udgment be
brought  before  the arbiter," should be subject  to  a  de  novo
standard   of   review.    The  case  they  cite,   International
Brotherhood of Electrical Workers, Local Union 1547  v.  City  of
Ketchikan,  805  P.2d 340 (Alaska 1991), does not  support  their
argument  with  regard to the standard of review.   Rather,  IBEW
holds  that  a  court  asked to clarify an ambiguous  arbitration
award  "should simply determine whether the award  is,  in  fact,
ambiguous or unclear [and] [i]n cases where real ambiguity exists
.  .  . remand those parts of the award that are ambiguous to the
arbitrator for clarification." Id. at 341.
     12    Ahtna, 894 P.2d at 660.
     13    Laidlaw Transit, Inc. v. Anchorage Sch. Dist., 118 P.3d
1018, 1038 (Alaska 2005).
     14     Marine Solution Servs., Inc. v. Horton, 70 P.3d  393,
414 (Alaska 2003).
     15     Alaska  Sales and Service claims that the AAA  ethics
issue was not raised below, but Kinn and Singletary did raise  it
before the superior court.
     16     Alaska  Sales  and Service makes a  different  waiver
argument  with regard to evident partiality.  Pointing  out  that
Davis told both parties in conference that he would not require a
deposit  of more than a day's fees "because all of them  were  my
friends,"  Alaska  Sales  and  Service  argues  that   Kinn   and
Singletary  waived any claim of evident partiality by failing  to
request disclosure immediately.  See Alaska State Hous. Auth.  v.
Riley  Pleas,  Inc., 586 P.2d 1244, 1248 (Alaska  1978)  (holding
that  a  claim of evident partiality had been waived by a party's
failure to object after an arbitrator told it "[y]ou guys . .   .
haven't presented your case yet, but . . . you guys don't have  a
chance,"  and  noting  that "[a] party may not  obtain  a  second
hearing  by silently collecting his [or her] objections  for  the
contingency  of  a loss in the first one").  But an  arbitrator's
comment  that "all of [the attorneys for both sides participating
in  the conference] were my friends" does not suggest bias toward
one party in the manner that "you guys don't have a chance" does.
In  a  small  legal  community like Anchorage, a  long-practicing
attorney's statement that every member of a particular  group  of
attorneys is a friend is unremarkable.  Because of this  context,
and  because  Davis did not differentiate between his friendships
with  attorneys for the various parties, it is unlikely that  the
statement would have been sufficient to give notice of  the  need
to object.
     17     Code of Ethics for Arbitrators in Commercial Disputes
Canon  IIA(1)  (2004)  (Am.  Arbitration  Ass'n),  available   at  As Kinn and Singletary point
out,  the  version in effect at the time of the  arbitration  was
substantially similar, requiring disclosure of "any  existing  or
past   financial,  business,  professional,  family   or   social
relationships  which are likely to affect impartiality  or  which
might reasonably create an appearance of partiality or bias."
     18     Commercial Arbitration Rules and Mediation Procedures
R.   16(a)   (2005)   (Am.  Arbitration  Ass'n),   available   at  Cf. Alaska R. Admin.  P.
23(f)(1)-(6)  (requiring retired judges who seek appointment  pro
tempore to disclose prior relationships with the parties  in  the
case, including whether the judge has acted as a private mediator
for the parties within the past two years).
     19     Commercial Arbitration Rules and Mediation Procedures
R.   16(b)   (2005)   (Am.  Arbitration  Ass'n),   available   at
     20    See ANR Coal Co. v. Cogentrix of N. Carolina, Inc., 173
F.3d 493, 497 (4th Cir. 1999) ("Even if [the arbitrator] violated
Canon II . . . the [AAA] Code of Ethics itself forecloses any use
of  such a violation as a basis for vacatur.  The Preamble of the
Code specifically states that it does not . . . establish new  or
additional  grounds for judicial review of arbitration  awards.")
(quotation marks omitted).
     21     Commercial Arbitration Rules and Mediation Procedures
R.   16(a)   (2005)   (Am.  Arbitration  Ass'n),   available   at
     22    Compare AS 09.43.120(a)(2) ("On application of a party,
the  court  shall  vacate an award if . .  .  there  was  evident
partiality  by  an arbitrator appointed as a neutral."),  with  9
U.S.C.   10(a)(2)  (2002)  ("In any of the  following  cases  the
United States court in and for the district wherein the award was
made may make an order vacating the award upon the application of
any  party  to  the  arbitration . . . where  there  was  evident
partiality or corruption in the arbitrators.").
     23    See Commonwealth Coatings Corp. v. Cont'l Cas. Co., 393
U.S. 145 (1968) (holding that an arbitrator who had sold services
to  a  contractor  involved in an arbitration dispute,  including
rendering  services  on  the projects at issue  in  the  dispute,
displayed  evident partiality, and noting that the AAA disclosure
rule   then  in  effect,  which  required  disclosure   of   "any
circumstances  likely  to  create a  presumption  of  bias,"  was
"highly significant" in determining that evident partiality could
support  vacatur of an arbitration award.  But the Court did  not
state a definite test for evident partiality.).
     24     Id.  at  150 ("It is often because they  are  men  of
affairs,   not   apart   from  but  of  the   marketplace,   that
[arbitrators]  are  effective in their adjudicatory  function.");
("[A]rbitrators are not automatically disqualified by a  business
relationship  with the parties before them if  both  parties  are
informed  of the relationship in advance, or if they are  unaware
of the facts but the relationship is trivial.").
     25     Cellular Radio Corp. v. OKI Am., Inc., 664 A.2d  357,
360-61  (D.C.  1995);  see id. at 361 n.5  (listing  cases  where
courts  addressed  undisclosed relationships between  arbitrators
and  parties  that raised implications of financial interests  or
other loyalties).
     26     See,  e.g., Morelite Constr. Corp. (Div. of  Morelite
Elec.  Serv.,  Inc.)  v. New York City Dist.  Council  Carpenters
Benefit  Funds, 748 F.2d 79, 84 (2d Cir. 1984) ("[W]e  hold  that
`evident partiality' within the meaning of 9 U.S.C.  10  will  be
found  where a reasonable person would have to conclude  that  an
arbitrator  was  partial to one party to the arbitration.").   In
cases  where  an arbitrator is selected because  of  his  or  her
particular  expertise,  the Morelite court  held  that  even  the
"appearance of bias" is not necessarily sufficient to  disqualify
the arbitrator.  Id.  Cf. Univ. Commons-Urbana, Ltd. v. Universal
Constructors,  Inc., 304 F.3d 1331, 1340 (11th  Cir.  2002)  ("At
first  blush,  a large number of . . . encounters would  seem  to
imply an inappropriately close association between arbitrator and
counsel.   Closer  inspection  reveals,  however,  that  frequent
interactions between Meyerson and Bradley Arant may simply be the
result  of the fact that both specialize in construction  law  in
Birmingham, Alabama.  Such familiarity due to confluent areas  of
expertise does not indicate bias.").
     27    Cf. Univ. Commons-Urbana, Ltd., 304 F.3d at 1339 ("[A]n
arbitration  award may be vacated due to the `evident partiality'
of  an arbitrator only when either (1) an actual conflict exists,
or   (2)   the  arbitrator  knows  of,  but  fails  to  disclose,
information which would lead a reasonable person to believe  that
a  potential  conflict exists.") (quotation marks  omitted);  Nw.
Mech.,  Inc.  v.  Pub. Util. Comm'n, 283 N.W.2d 522,  524  (Minn.
1979)  (reversing  an  arbitration  award  on  the  grounds  that
dealings  between two of the arbitrators and one of  the  parties
"might create an impression of possible bias").
     28     See, e.g., Positive Software Solutions, Inc.  v.  New
Century  Mortgage  Corp.,  436 F.3d  495,  502  (5th  Cir.  2006)
(holding  that  "an arbitrator selected by the  parties  displays
evident  partiality  by the very failure to disclose  facts  that
might   create   a  reasonable  impression  of  the  arbitrator's
partiality");  Schmitz v. Zilveti, 20 F.3d 1043, 1047  (9th  Cir.
1994)  (holding that, where the arbitrator fails  to  disclose  a
relationship with a party, "[s]howing a reasonable impression  of
partiality   is  sufficient"  to  establish  evident  partiality)
(quotation marks omitted).
     29     See  Riley Pleas, Inc., 586 P.2d at 1248-49  (holding
that  a  claim  of evident partiality against one arbitrator  had
been  waived  by a party's failure to object after an  arbitrator
told it "[y]ou guys . .  . haven't presented your case yet, but .
.  .  you  guys don't have a chance," and rejecting  a  claim  of
evident partiality on the part of a second arbitrator where  that
arbitrator  had failed to disclose his one-third  interest  in  a
partnership  for  which  one  party's  attorney  had   previously
performed legal services).
     30     Cf. Cellular Radio Corp., 664 A.2d 357 (applying  New
Jersey  law  to hold that an arbitrator's previous representation
of  a client in a case in which one party's lawyer represented  a
party  adverse  to  the arbitrator's client  did  not  constitute
evident   partiality).   In  the  present   case,   the   clients
represented  by  Davis  and Bankston were  not  adversaries  but,
according   to  Davis,  "there  were  independent  interests   of
[Davis's] client that were separate from the interest[s]  of  Mr.
Bankston's  client."   At oral argument,  Kinn's  attorney  cited
Milliken  Woolens,  Inc.  v.  Weber Knit  Sportswear,  Inc.,  202
N.Y.S.2d  431,  435  (N.Y.  App. Div. 1960)  in  support  of  the
proposition that an arbitrator's involvement in another case with
a  party  can  constitute evident partiality.   But  Milliken  is
inapposite  because the relationship between the  arbitrator  and
the  attorney was significantly closer in that case.  Unlike  the
arbitrator  and lawyer at issue in Milliken, Davis  and  Bankston
were  not  co-counsel and, unlike the previous case in  Milliken,
VECO  was  not  pending  at  the time of  the  arbitration.   Cf.
Positive  Software  Solutions, 436 F.3d at 497-98,  504  (holding
that  an  arbitrator displayed evident partiality by  failing  to
disclose  that  he  was  co-counsel  with  one  of  the  parties'
attorneys  in  a previous action, even after he was  asked  about
prior   professional  relationships).   Furthermore,  unlike   in
Milliken,  there  is nothing in the record here to  "sustain[]  a
conclusion  that there was covert influence in the  selection  of
[the]   arbitrator[],"  and  there  is  no  allegation  that   "a
substantial  claim  which  respondents' counsel  was  prosecuting
against  this arbitrator's company at the time of the arbitration
was settled immediately after the award . . . was made."  Id.  at
     31     Cf.  Morelite,  748  F.2d  at  83  (noting  that  "to
disqualify any arbitrator who had professional dealings with  one
of  the  parties  (to  say nothing of a social  acquaintanceship)
would  make  it  impossible, in some  circumstances,  to  find  a
qualified  arbitrator at all").  This would be  an  even  greater
problem  in  other Alaska communities, all of which  are  smaller
than Anchorage.
     32     Cf.  San Luis Obispo Bay Props., Inc. v. Pac.  Gas  &
Elec.  Co, 28 Cal. App. 3d 556, 568 (Cal. App. 1972) ("Here there
is  no  showing  that  Goode and Shelger did anything  more  than
merely   refer  their  overflow  cases  to  other  appraisers   -
presumably  to several others as well, since both  men  had  more
business than they could handle.  It would perhaps be a different
matter  if  they had referred more cases to each  other  than  to
other  appraisers, or had regularly given each  other  the  first
opportunity   at  a  reference  (or  the  first  opportunity   at
particularly desirable cases), but there is no indication of  any
favoritism  or unusual preference here - nothing, in short,  that
could be fairly said to create an impression of possible bias  as
a matter of law.").
     33     Davis,  in his second letter to Reeves, explains  the
referrals as follows:

               I told you . . . that over the years Mr.
          Bankston  and  I have referred cases  to  one
          another on an infrequent basis, and have been
          opposing counsel as well.  I believe  I  have
          already  told  you  that I have  infrequently
          referred clients to Mike Mills [(a member  of
          Bankston's firm)] on bankruptcy matters.   No
          one,  either Mr. Bankston or Mr. Amodio  [(an
          attorney  representing Kinn and Singletary)],
          has   ever   told  me  the  reasons   I   was
          recommended by either of them.  I have  never
          asked   and  have  simply  assumed  that   my
          experience in environmental cases might  have
          been a factor that was considered by both  of
     34    San Luis Obispo Bay Props., 28 Cal. App. 3d at 567.
     35     See, e.g., St. Paul Ins. Cos. v. Lusis, 492 P.2d 575,
581 (Wash. App. 1972) (holding that "the arbitrator's failure  to
disclose either his membership on the Board of Governors  or  his
service  with one of respondent's counsel on that board does  not
constitute   sufficient  grounds  to  warrant  vacatur   of   the
arbitrator's award").
     36     This is not to suggest that relationships that  would
constitute evident partiality can be "cancelled out" by ties with
the  other  side  that would also indicate bias.  All  such  ties
should  be  disclosed.   See  Commercial  Arbitration  Rules  and
Mediation  Procedures  R. 16(a) (2005) (Am.  Arbitration  Ass'n),
available at  But,  where
the  relationships with neither side rise to the level of evident
partiality, the fact that an arbitrator has professional contacts
with  both  sides casts doubt on the view that the arbitrator  is
biased in favor of one side.
     37     See  AS 09.43.120(a)(3) (providing that a court  must
vacate an award if "the arbitrators exceeded their powers").
     38    Ahtna, 894 P.2d at 660-61.  A claim involving a garden
variety  error  in  contract  interpretation,  rather  than  "the
arbitrator's  construction  of  the  contract  with   regard   to
arbitrability,"  is  ordinarily  not  reviewable.   Id.  at  661.
(Emphasis added.)  Kinn and Singletary, however, assert not  only
that the arbitrator misinterpreted the contract, but also that he
lacked   the   authority  to  impose  partial  rescission.    The
arbitrator's  choice  of  this  remedy  necessarily   implies   a
determination that he has the authority to impose such a  remedy.
The  sole focus of our review is that determination, and  nothing
in this section should be construed as a ruling on the underlying
contractual  issues,  or the general appropriateness  of  partial
rescission as a remedy.  Id.
     39    Univ. of Alaska v. Modern Constr., Inc., 522 P.2d 1132,
1137 (Alaska 1974).
     40    Johnson v. Olympic Liquidating Trust, 953 P.2d 494, 497
(Alaska 1998).  As Alaska Sales and Service notes, however,  this
court actually allowed partial rescission in Johnson.  See id. at
498  (holding that one party had "no right to avoid the  note  at
least  to  the  extent of [the sums not procured by fraud],"  but
permitting rescission as to the amounts tainted by fraud).
     41     Sea  Lion Corp. v. Air Logistics of Alaska, 787  P.2d
109, 115 (Alaska 1990).
     42     Univ. of Alaska v. Modern Constr., Inc., 522 P.2d  at
     43    Johnson v. State, 577 P.2d 706, 709 (Alaska 1978).
     44    Williams, 890 P.2d at 586.
     45    See id. at 587 (holding that "the superior court could
properly consider the delay resulting from an indefinite stay  or
continuance in deciding whether to enter a Rule 54(b) judgment").
The court also noted cryptically that the order was being granted
"in  light  of  Mr.  Kinn's  asset transfers  in  recent  years."
Whether  this  alone  would constitute an "express  determination
that  there  is  no just reason for delay" under  Rule  54(b)  is
     46    If Hagen's third-party claim is similar in substance to
Kinn and Singletary's third-party claim (i.e., an allegation that
the  party  being sued is the one primarily responsible  for  the
contamination  of  the property), subsequent  third-party  claims
could  continue the chain of lawsuits ad infinitum.  Judgment  in
this case would be held hostage until the chain finally reached a
party who could not find someone else to sue.
     47    805 P.2d 340 (Alaska 1991).
     48     Id.  at 343 n.7; but see Symons v. Schuylkill  County
Vocational  Sch.,  884 A.2d 953, 958 (Pa. Commw.  2005)  (holding
that "the doctrine of functus officio [stating that an arbitrator
generally  cannot retain jurisdiction absent a mistake, omission,
or ambiguity in the award] is a common law concept and applies to
common law arbitrations," but that it "has no application"  under
the Uniform Arbitration Act).
     49    Id. at 344; see also United Steelworkers of Am., Local
12886 v. ICI Am., Inc., Atlas Point Plant, 545 F. Supp. 152,  154
(D.  Del.  1982)  ("Where the true intent  of  an  arbitrator  is
apparent, the award should not be resolved by resubmission to the
arbitrator.").  The IBEW court noted the possibility  that,  even
where  an issue is ambiguous, "there may be some instances  where
remand  to  the arbitrator is not feasible."  IBEW, 805  P.2d  at
344.   Because  the  arbitrator himself offered  to  resolve  any
ambiguities in the arbitration award, this does not appear to  be
an issue here.
     50    See, e.g., LLT Intern., Inc. v. MCI Telecomm. Corp., 69
F.  Supp. 2d 510, 515 (S.D.N.Y. 1999) (stating that "courts  have
routinely  provided  for  the remand of  arbitration  awards  for
clarification or completion," and listing cases); Dean Foods  Co.
v.  United Steel Workers of Am., 911 F. Supp. 1116, 1127-28 (N.D.
Ind. 1995) (noting that "[t]here is a wealth of case law, both in
this  circuit  and  in others, recognizing the  propriety  of  an
arbitrator retaining jurisdiction over the remedy portion  of  an
award,"  and  listing cases); Engis Corp. v. Engis Ltd.,  800  F.
Supp.  627, 632 (N.D. Ill. 1992) (holding that an arbitrator  may
retain   jurisdiction  "solely  for  the  purpose   of   ensuring
compliance with his [or her] award").
     51     Elkouri & Elkouri, How Arbitration Works,  333  (Alan
Miles  Ruben  ed., BNA Books 2003); see id. at 333 n.195  (noting
that it is now "common for arbitrators to retain jurisdiction  so
that  their  awards  are properly carried out  and  disagreements
about  the award can be resolved" and citing cases).  IBEW  cites
the 1985 edition of How Arbitration Works.  See IBEW, 805 P.2d at
343 n.7.
     52     See  Elkouri & Elkouri:  How Arbitration  Works,  333
     53    Id. at 333.
     54    See, e.g., Engis, 800 F. Supp. at 632 (holding that an
arbitrator  may  retain jurisdiction "solely for the  purpose  of
ensuring compliance with his [or her] award").
     55    See id.
     56     The  superior court awarded Alaska Sales and  Service
twenty  percent of its actual expenditures on attorney's fees  in
accordance with Civil Rule 82(b)(2).
     57    972 P.2d at 604.
     58     See Integrated Res. Equity Corp. v. Fairbanks N. Star
Borough, 799 P.2d 295, 300 (Alaska 1990) (distinguishing  between
fees  incurred in the course of the arbitration, to  which  Civil
Rule  82  does  not  apply, and fees incurred in post-arbitration
proceedings, to which Civil Rule 82 can apply).
     59     Had  the postjudgment interest been relative  to  the
court's  own  judgment, the court would have  been  bound  by  AS
09.30.070(a), which provides in relevant part that "the  rate  of
interest on judgments and decrees for the payment of money . .  .
is  three  percentage  points  above  the  12th  Federal  Reserve
District  discount rate in effect on January 2  of  the  year  in
which the judgment or decree is entered."
     60     The arbitrator's award repeats this, requiring tender
of the warranty deed and repayment of the purchase price, but not
stating  whether  tender of the warranty  deed  is  triggered  by
partial  payment  of  the purchase price,  full  payment  of  the
purchase price but partial payment of the entire award,  or  full
payment of the entire award.
     61     The  footnote  is  appended to a sentence  discussing
interest  on  the  amount  awarded for environmental  damages,  a
component  of  the award separate from repayment of the  purchase
price of the property.
     62     See  Engis,  800  F. Supp. at  632  (noting  that  an
arbitrator's  continuing  jurisdiction  exists  "solely  for  the
purpose of ensuring compliance with his [or her] award").
     63    See K&L Distribs., Inc. v. Kelly Elec., Inc., 908 P.2d
429,  432  (Alaska  1995) (noting the VCC's  distinction  between
personal property unrelated to real estate and "fixtures,"  which
are  "items  of  personal  property that  become  so  affixed  or
otherwise so related to real estate that they become part of  the
real estate") (quotation marks omitted).
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