Perryman Construction Management Inc. v. Doeppel Premier Properties Idaho, LLC

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 51024

PERRYMAN CONSTRUCTION )
MANAGEMENT, INC., an Idaho ) Filed: November 15, 2024
corporation, )
) Melanie Gagnepain, Clerk
Plaintiff-Counterdefendant- )
Respondent, )
)
and )
)
ALL PRO MECHANICAL, LLC, an )
Idaho limited liability company, )
)
Plaintiff-Counterdefendant, )
)
v. )
)
DOEPPEL PREMIER PROPERTIES )
IDAHO, LLC, an Idaho limited liability )
company, )
)
Defendant-Counterclaimant- )
Appellant, )
)
and )
)
STEPHEN’S ELECTRIC, INC., )
)
Intervenor. )
)

Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon
County. Hon. Brent L. Whiting, District Judge.

Judgment awarding attorney fees to All Pro Mechanical, LLC and Perryman
Construction Management, Inc., affirmed; judgment confirming arbitration award
and awarding attorney fees and costs to All Pro Mechanical, LLC and Perryman
Construction Management, Inc., affirmed.

Borton-Lakey Law & Policy; Victor Villegas, Meridian, for appellant. Victor
Villegas argued.

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Smith + Malek, PLLC; Kirk Houston, Boise, for respondent. Kolby Reddish
argued.
________________________________________________
TRIBE, Judge
Doeppel Premier Properties Idaho, LLC (Doeppel) appeals from two judgments entered by
the district court affirming an arbitration award and granting attorney fees and costs to All Pro
Mechanical, LLC (All Pro) and Perryman Construction Management, Inc. (Perryman). We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Doeppel hired Perryman to be the general contractor for a construction project. The parties
entered into a “Construction Services Agreement” (contract) wherein Perryman agreed to build
five buildings within 200 days for a cost not to exceed $2,265,670.00. Based on Doeppel’s
dissatisfaction with Perryman’s progress, Doeppel sent written notices to Perryman demanding the
defects be cured within thirty days. Seven days after the last notice was sent, John Doeppel, the
owner of Doeppel, came to the project site and told Kelly Perryman, the owner and principal officer
of Perryman, to “[g]et the f*** off my site.”1 Perryman ceased operations and asked the City of
Caldwell to remove Perryman as the general contractor for the project.
Perryman filed a complaint against Doeppel for foreclosure of a mechanic’s lien, breach of
contract, quantum meruit, and unjust enrichment.2 Doeppel responded by asserting the following
counterclaims: breach of contract, breach of warranties, unjust enrichment, and a breach of
fiduciary duties. Both parties stipulated to submit all claims and counterclaims to arbitration in

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There is conflicting testimony about the exact phrase used by John Doeppel. Kelly
Perryman testified that John Doeppel said “[g]et the f*** off my site” while a bystander testified
that the phrase was “[g]et the f*** off my property.” For consistency purposes, we will use the
former phraseology when referring to the statement.
2
All Pro Mechanical LLC (All Pro) was hired as a subcontractor by Perryman. All Pro was
a complaining party and remained a party until after arbitration. The arbitrator awarded All Pro
$111,279.69. Pending this appeal, Doeppel paid the judgment amount to All Pro and All Pro was
dismissed as a party to this appeal.

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conformity with the arbitration clause of the contract.3 At the conclusion of the hearing, the
arbitrator issued an interim decision and then a final decision. The final decision and award were
in favor of Perryman. In district court, Perryman filed a motion to confirm the award, and Doeppel
filed a motion to vacate the award. At a hearing on the motions, the district court orally denied
Doeppel’s motion to vacate the award and later entered an order confirming the arbitration award.
Judgment was entered awarding Perryman attorney fees. A second judgment was entered on the
arbitration award. Doeppel appeals both judgments of the district court.
II.
STANDARD OF REVIEW
When reviewing a district court’s decision to vacate or modify an award of an arbitration
panel, this Court employs virtually the same standard of review as that of the district court when
ruling on the petition for review of the arbitration award. Bingham Cnty. Comm’n v. Interstate
Elec. Corp., 105 Idaho 36, 42, 665 P.2d 1046, 1052 (1983). Review of an arbitrator’s award is
limited to whether any of the grounds for relief stated in the Idaho Uniform Arbitration Act (UAA)
exist. Idaho Code § 7-912; Moore v. Omnicare, Inc., 141 Idaho 809, 814, 118 P.3d 141, 146
(2005). An arbitrator’s rulings on questions of law and fact are binding, even where erroneous,
unless one of the statutory grounds enumerated in I.C. § 7-912(a) is present. Moore, 141 Idaho at
815, 118 P.3d at 147.
III.
ANALYSIS
Doeppel presents several issues on appeal. The first issue is whether the district court erred
in confirming the arbitration award. Doeppel alleges the arbitrator exceeded his powers in two
ways: the first was by exceeding the bounds of the contract by finding the contract was terminated
by verbal communication, excusing Perryman from liability for Doeppel’s work after Perryman
ceased work, and awarding damages to nonparties; and the second was by considering issues that
were not submitted to the arbitrator by the parties. In response, Perryman contends that the
arbitrator did not err and, therefore, Doeppel’s claims should not be reviewed on the merits.

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Article 9.1. of the contract requires “[a]ny claim, dispute or other matter arising” out of the
contract must be “decided by binding arbitration under the American Arbitration Association
Construction Industry Rules.”

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Alternatively, Perryman asserts that, even if the issues are reviewed, Doeppel’s arguments fail
because the arbitrator’s findings are reasonable and the arbitrator considered issues that were
properly before him. The second issue presented on appeal is whether the arbitration award can
be modified. Doeppel argues the arbitration award can be modified pursuant to I.C. § 7-913(a)(2),
which allows the modification or correction of an award when an arbitrator considers an award not
submitted to the arbitrator. The final issue is whether Perryman is entitled to attorney fees on
appeal. Perryman argues he is entitled to attorney fees pursuant to a contractual provision
permitting fees when a party is enforcing arbitration. Doeppel argues the plain language of the
contract does not provide for attorney fees on appeal.
A. Arbitrator’s Powers
Review of an arbitrator’s award is limited to whether any of the grounds for relief stated in
the UAA exist. Idaho Code § 7-912; Moore, 141 Idaho at 814, 118 P.3d at 146. An arbitrator’s
rulings on questions of law and fact are binding, even where erroneous, unless one of the statutory
grounds enumerated in I.C. § 7-912(a) is present. Moore, 141 Idaho at 815, 118 P.3d at 147. Those
grounds include an arbitrator exceeding his powers. I.C. § 7-912(a)(3). The Idaho Supreme Court
has explained that an arbitrator exceeds its powers when the arbitrator considers an issue not
submitted by the parties or when the arbitrator exceeds the bounds of the contract between the
parties. Bingham Cnty. Comm’n, 105 Idaho at 42, 665 P.2d at 1052. The Idaho Supreme Court
has also recognized that, when parties submit an issue to be resolved by the arbitrator, the
“submission necessarily contemplates that the arbitrator will have to exercise the factual and legal
judgment that the parties bargained for when they agreed that disputes concerning their contract
would be submitted to an arbitrator.” Mumford v. Miller, 143 Idaho 99, 101, 137 P.3d 1021, 1023
(2006).
For example, in Mumford, the Court reviewed an order from the district court declining to
award Mumford attorney fees after an arbitrator likewise denied an award of attorney fees.
Id. at 99, 137 P.3d at 1021. Mumford argued that the arbitrator disregarded the mandatory
directive in the contract between the parties that required an award of attorney fees to the prevailing
party. Id. at 100-01, 137 P.3d at 1022-23. The Court concluded that the parties “submitted all
issues--including attorney fees--for resolution by the arbitrator.” Id. at 101, 137 P.3d at 1023. This
required the arbitrator to determine whether there was a prevailing party for purposes of attorney

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fees, a determination necessarily based on the facts and the law. The Court held that, by making
such a determination, the arbitrator did not exceed its powers under the UAA and the Court rejected
Mumford’s veiled request to review “the propriety of [the arbitrator’s] factual determinations or
the correctness of his determinations regarding applicable Idaho law.” Id.
Doeppel argues that the district court should have vacated the arbitration award because
the arbitrator exceeded his powers. See I.C. § 7-912(a)(3). Before addressing the merits of
Doeppel’s argument that the arbitrator exceeded his powers, we note that, throughout the record
on appeal, “power” and “authority” are used interchangeably. For example, at the hearing on the
motion to vacate the arbitration award, the parties and the district court used the following language
when discussing the arbitrator: “exceeded his authority,” “what is the power of the arbitrator,”
“when the arbitrator exceeds their powers,” “what the authority or power is for an arbitrator,” and
“that limits the authority of the arbitrator.” Other synonymous phrases used to determine if the
district court should vacate the arbitration award included: the “scope of the powers of the
arbitrator,” “authority that was granted,” “scope of authority,” “exceeding the arbitrator’s powers,”
“powers and scope of powers,” and what the “arbitrator had authority to determine.” In the issues
section of its opening brief on appeal, Doeppel argues the arbitrator exceeded his “powers.”
Throughout both its opening brief and its reply brief, Doeppel also references the arbitrator
exceeding the bounds of his “authority.”
Idaho Code § 7-912(a)(3) allows for the vacation of an arbitration award if the arbitrator
“exceed[s] [his] powers” not if the arbitrator exceeds his authority. Mumford states that the
arbitrator’s powers derive from the parties’ agreement. Mumford, 143 Idaho at 101, 137 P.3d at
1023 (citing Moore, 141 Idaho at 816, 118 P. 3d at 148). In Moore, following the statement that
“matters submitted for arbitration are relevant to determining the scope of an arbitrator’s power,”
the Court followed with, “[a]bsent express limitation by the parties, the arbitrator’s authority is
very broad.” Moore, 141 Idaho at 816, 118 P. 3d at 148. When read together, Moore and Mumford
seem to indicate that, if an arbitrator exceeds his authority in a certain area, the arbitrator does not
have the power to act in the area where the arbitrator exceeded his authority. See Mumford, 143
Idaho at 101, 137 P.3d at 1023; Moore, 141 Idaho at 816, 118 P.3d at 148.
The terms “power” and “authority” have different legal meanings. Power is the ability to
act or not act. Power (2), BLACK’S LAW DICTIONARY (12th ed. 2024). Authority is the official

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right or permission to act, especially to act legally on another’s behalf. Authority, BLACK’S LAW
DICTIONARY (12th ed. 2024). Therefore, the term “power” will be used in this context to address
the abilities of the arbitrator that are bestowed upon his position by statute while we use the term
“authority” in reference to the allowances to the act given to the arbitrator by way of contractual
agreement between the parties.
1. Bounds of the contract
Doeppel argues that the district court erred in failing to vacate the arbitration award because
the arbitrator exceeded the bounds of the contract in three ways. First, Doeppel argues that the
district court erred in affirming the arbitration award because the arbitrator “changed the terms of
the Construction Contract to allow notice and amendment of the contract to occur by a single
verbal statement” while the terms of the contract required any modification to be in writing.
Second, Doeppel argues that the arbitrator exceeded his powers by finding that Perryman was not
responsible for the costs of correction. Third, Doeppel argues that the arbitrator exceeded his
powers by considering third-party subcontractor claims in awarding damages. Perryman responds
that the arbitrator did not exceed his powers because he did not rule on any issues that were not
submitted to him.
With respect to Doeppel’s first argument--that the arbitrator exceeded his powers because
the arbitrator decided that the contract was terminated by John Doeppel verbally telling Kelly
Perryman to “[g]et the f*** off my site”--Doeppel asserts that this decision directly contradicts the
express language of the contract provision requiring any notice to be in writing and delivered by
mail or in-person. Doeppel distinguishes this case from Mumford by noting that the parties in
Mumford submitted the issue of attorney fees to the arbitrator while here “neither Perryman nor
Doeppel submitted the issue of oral modification” to arbitration. Doeppel also distinguishes this
case by emphasizing that the agreement in Mumford contained language allowing an arbitrator to
award attorney fees, which the arbitrator did not award, while here the arbitrator disregarded the
contract’s prohibition on oral modifications. Doeppel argues that the arbitrator exceeded his
authority because the arbitrator allowed oral modification. The express terms of the contract
prohibited oral modification; therefore, the issue of oral modification was improper for the
arbitrator to consider.

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Doeppel cites the Idaho Supreme Court’s holding that an arbitrator goes beyond his scope
of authority when deciding on an award that “directly contradicts [the] express language” of a
contract. Moore, 141 Idaho at 818, 118 P.3d at 150. Moore involved an arbitrator’s award of
attorney fees despite a contract provision that expressly required both parties to bear their own
costs during arbitration. The Idaho Supreme Court held that awarding costs was beyond the
arbitrator’s authority. Id. Doeppel interprets Moore to hold that an arbitrator exceeds his authority
“where a contract prohibits something from occurring, yet the [a]rbitrator made it occur.” Even
with this interpretation, the analysis in Moore is distinct from the issue before us.
Unlike in Moore, where the contract limitation was placed on the authority of the arbitrator,
the contract here provided no such limit on the arbitrator’s authority to resolve the contested legal
question. Here, the contract language precluding oral modifications was a legal directive to the
parties, not the arbitrator. As Doeppel acknowledges on appeal, both parties asked for strict
compliance with the terms of the contract when submitting the issue to arbitration. Article 9.1 of
the contract states that “any claim, dispute or other matter arising out of this [a]greement must be
decided by binding arbitration” (emphasis added), which included the contract’s termination and
notice provisions. Because Article 9.1 requires all disputes arising out of the contract to be
submitted to arbitration, the method of termination issue was a legal issue properly decided by the
arbitrator. See Mumford, 143 Idaho at 101, 137 P.3d at 1023.
Like in Mumford, Doeppel attempts to disguise its challenge to the factual and legal
conclusions of the arbitrator concerning the methods by which the contract could be terminated or
modified as an issue of the arbitrator violating a non-discretionary directive of the contract. Here,
the contested language is not a directive or limitation on the arbitrator but rather, is a clause of
legal consequence discussing how the contract may be terminated or modified between the parties.
Because this is an attack on the arbitrator’s legal conclusion, it may not be reviewed for its
substance.
Doeppel next argues that the arbitrator exceeded his powers when he failed to deduct, from
the award, the amounts Doeppel spent to complete the project after Perryman ceased working.
Doeppel contends that, even if the contract was terminated, it retained the ability to deduct the cost
to remedy the construction defects based on the contract’s survival clause. The arbitrator decided
that “Perryman waived the right to demand an opportunity to remedy any alleged deficiencies” for

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“fail[ing] to object to the verbal notice to leave the job site” and that Doeppel waived any right it
had to demand Perryman to correct any deficiencies “by verbally ordering Perryman off the job
site.” As with its other argument, Doeppel is asking this Court to review the factual and legal
conclusions of the arbitrator. Accordingly, this argument suffers the same fate--we decline to
review its merits because the arbitrator’s factual and legal conclusions are not reviewable.
Third and last, Doeppel argues that the arbitrator exceeded his powers when he considered
third-party subcontractor claims as part of the award of damages. Doeppel points to the binding
arbitration clause which reflects the agreement between the parties to submit “[a]ny claim, dispute
or other matter arising out of this [a]greement” to arbitration. Doeppel contends this provision
limits the claims submitted in arbitration to those between Perryman and Doeppel. Perryman
responds that claims “arising out of the [a]greement” include claims stemming from money due or
paid to the subcontractors hired by Perryman for the completion of the project, which is the subject
of the contract. We agree. The arbitration agreement between Perryman and Doeppel does not
restrict any issue from being considered by the arbitrator but instead provides a broad scope of
potential issues and claims to be properly considered by the arbitrator as noted by the term “[a]ny
claim, dispute or other matter” language of Article 9.1 of the contract. Because it is not contested
that the third-party subcontractors were hired by Perryman to perform tasks in furtherance of
Perryman’s position as general contractor for Doeppel’s project, the issue of damages awarded to
the subcontractors that were hired to assist Perryman in aid of that position is an issue arising out
of the agreement between Doeppel and Perryman. We decline to adopt Doeppel’s interpretation
that the arbitration provision limits third-party claims arising from the agreement. Because
Doeppel and Perryman did not stipulate to omit third-parties from the arbitrator’s consideration, it
was properly considered by the arbitrator. See American Foreign Ins. Co. v. Reichert, 140 Idaho
394, 401, 94 P.3d 699, 706 (2004) (holding an arbitrator exceeds the bounds of the contract when
the parties agreed to omit an issue from arbitration and the arbitrator still makes a determination
concerning that issue).

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2. Issues submitted
Doeppel argues that the arbitrator considered issues that were not properly before him.
Specifically, Doeppel argues that the issues of contract modification or waiver were not submitted
by the parties as issues to be decided. Doeppel supports its argument by stating that “the
[a]rbitrator eliminated the contract provisions requiring written notice.” Perryman argues that the
issues decided by the arbitrator were squarely in front of him. We agree.
Doeppel suggests that the issues of contract modification or waiver were not submitted to
the arbitrator. However, it is difficult to see how these issues were not submitted to the arbitrator
when the underlying issue to be decided was whether a breach of contract had occurred. A review
of the arbitrator’s decision shows that the issues of contract modification and waiver fall within
the breach of contract issues. The arbitrator stated:
Doeppel has asserted that Perryman breached their Agreement by quitting
the Project without provocation and that such conduct constitutes a breach of
contract and breach of the implied duty of good faith and fair dealing that exists in
every agreement. Doeppel bases its assertion on its position that Perryman
wrongfully abandoned the Project. On the contrary, the evidence establishes and
the Arbitrator finds that Doeppel ordered Perryman to stop construction and leave
the job site on January 17, 2020. Kelly Perryman left the job site on January 17,
2020 and removed Perryman as the general contractor on the Project because John
Doeppel told him to get off the job site.

Based on Doeppel’s assertion that Perryman abandoned the project, the arbitrator was required to
consider whether Perryman’s cessation of work did, in fact, constitute a breach of the contract.
The analysis would necessarily include determining whether Perryman was excused from
performance. In this case, the arbitrator found Doeppel’s demand for Perryman to leave the jobsite
excused Perryman’s performance on the jobsite. As the parties submitted the issue of breach of
contract to the arbitrator, Doeppel’s argument that the issues of contract modification or waiver
were not issues before the arbitrator fails.
B. Modification of Arbitration Award
Doeppel argues that the arbitration award can be modified to reduce the amount awarded
to various subcontractors because the contract did not contemplate joining third-party
subcontractors to the arbitration award. In support of this argument, Doeppel cites I.C. § 7-
913(a)(2), which allows a court to modify or correct an award where the arbitrators have awarded

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upon a matter not submitted to them and the award may be corrected without affecting the merits
of the decision upon the issues submitted. Perryman’s argument here mirrors its argument above
relating to subcontractors--that the terms of the contract required arbitration for “[a]ny claim,
dispute or other matter arising” out of the contract and would necessarily include claims by
subcontractors. For the reasons stated above, we agree that the contract’s terms permitted the
arbitrator to consider subcontractor awards. Because this was an issue submitted to the arbitrator,
I.C. § 7-913(a)(2) does not apply and the award may not be modified.
C. Attorney Fees and Costs on Appeal
Perryman asks for attorney fees and costs on appeal pursuant to the contract, I.C. § 7-914;
I.C. § 12-121; I.A.R. 41; and Mumford. Doeppel argues that the award of attorney fees is improper
except pursuant to “a statute or contractual provision authorizing an award of attorney fees on
appeal.” Ticor Title Co. v. Stanion, 144 Idaho 119, 127, 157 P.3d 613, 621 (2007). Doeppel points
to the language included in Article 9.3 of the contract that states, “[t]he prevailing party in the
arbitration must be awarded its reasonable attorney fees and costs incurred in the arbitration
and . . . enforcing the arbitration award in court” and suggests that the language “does not provide
for an award of attorney fees on appeal.” We disagree. The term “enforcing the arbitration award”
can have no more particularized meaning than in this appeal as Perryman is seeking to enforce its
arbitration award against Doeppel.
Even if we were to read the contract as Doeppel does, Perryman is still entitled to attorney
fees and costs pursuant to I.C. § 12-121, which permits the prevailing party to be awarded attorney
fees and costs when the trial court “finds that the case was brought, pursued or defended
frivolously, unreasonably or without foundation.” In Mumford, the Court awarded attorney fees
to the respondent when the appellant’s “arguments amount[ed] to a disagreement with the
arbitrator’s factual findings and legal conclusions,” which do not fall within the “narrow and
specifically delineated” grounds upon which an arbitrator’s decision may be reviewed. Mumford,
143 Idaho at 101, 137 P.3d at 1023. As the same is true of Doeppel’s arguments here, Perryman
is awarded attorney fees and costs associated with this appeal.

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IV.
CONCLUSION
Doeppel has failed to meet its burden on appeal of showing that the arbitrator exceeded his
powers by going beyond the bounds of the contract or by considering issues not submitted to him
by the parties. Consequently, a modification of the arbitration award would be improper.
Therefore, the judgments affirming the arbitration award and awarding attorney fees and costs are
affirmed. Perryman is awarded attorney fees and costs on appeal.
Judge HUSKEY and Judge LORELLO, CONCUR.

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