Duke v. Graham

2007 UT 31
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Ted Duke, an individual, and No. 20051036
Maria Del Carmen Zavala Cardenas,
an individual,
Plaintiffs and Appellants,
v.
Randal Graham, an individual,
David Graham, an individual, and
Craig R. Mariger, in his capacity F I L E D
as purported arbitrator herein,
Defendants and Appellees. March 30, 2007
---
Third District, Salt Lake
The Honorable John Paul Kennedy
No. 040925274
Attorneys: Nick J. Colessides, John Martinez, Salt Lake City,
for plaintiffs
David R. Williams, Anthony M. Grover, Salt Lake City,
for defendants
---
PARRISH, Justice:
INTRODUCTION
¶1 The principal question presented by this appeal is
whether a member or manager of a limited liability company may be
removed through binding arbitration. We answer the question in
the affirmative. Although Utah Code sections 48-2c-710(3) and
48-2c-809(1) provide for judicial removal of members and managers
of limited liability companies, the legislature did not forbid
removal through other means. Additionally, even though the Utah
Constitution guarantees Utah citizens their day in court, it does
not prevent individuals from bargaining away their rights to
judicial proceedings through arbitration agreements.

No. 20051036 2
BACKGROUND
¶2 Ted Duke (“Duke”), Maria Del Carmen Zavala Cardenas
(“Cardenas”), Randal Graham, and David Graham all executed an
operating agreement for the limited liability company “Way Cool
Dirt Cheap, LLC” (“WCDC”). These four individuals became members
of the LLC, while Duke and Randal Graham were also designated as
managers. The operating agreement provides for arbitration in
the event of a dispute among the members.
¶3 Soon after the signing of the operating agreement, a
conflict arose between Duke and Cardenas on one side and the
Grahams on the other. The Grahams alleged that Duke and Cardenas
used WCDC assets to create a competing company, Original Way Cool
Dirt Cheap. The Grahams notified Duke and Cardenas of their
intent to submit the dispute to arbitration, after which Duke and
Cardenas filed suit to enjoin the arbitration. The district
court eventually ordered the parties to submit to arbitration.
Following several evidentiary hearings and oral arguments, the
arbitrator issued an award removing Duke and Cardenas as members
of WCDC by virtue of Utah Code section 48-2c-710(3)(a) and (c).
Although the award itself did not explicitly address the issue,
the arbitrator’s written comments implicitly revealed the intent
to remove Duke as a manager of WCDC.
¶4 After the award was issued, the Grahams petitioned the
district court to enter a judgment confirming the arbitration
award, and Duke and Cardenas moved to vacate it, arguing that the
arbitrator had exceeded his authority by expelling Duke and
Cardenas as members and Duke as a manager of WCDC. Specifically,
Duke and Cardenas asserted that Utah Code sections 48-2c-710(3)
and 48-2c-809(1) provide that only a court may remove members and
managers of an LLC. Additionally, Duke and Cardenas argued that
under the due process and open courts provisions of the Utah
Constitution, they cannot be deprived of their property rights to
membership and management of an LLC without their “day in court.”
The district court rejected these arguments and confirmed the
arbitration award.
¶5 Duke and Cardenas now appeal to this court. They argue
that the arbitrator exceeded his authority and that the district
court therefore erred in confirming the award.
STANDARD OF REVIEW
¶6 In reviewing the district court’s judgment affirming
the arbitration award, this court must apply two independent
standards of review. The first is the standard of review
applicable to this court’s review of the district court’s

1 Prior to May 2003, the Arbitration Act required a district
court to vacate an arbitration award if “the arbitrators exceeded
their powers.” Utah Code Ann. § 78-31a-14(1)(c) (2002) (repealed
2003). Under the current incarnation of the Act, a district
court shall vacate an award if “an arbitrator exceeded the
arbitrator’s authority.” Id. § 78-31a-124(1)(d). Thus, the only
relevant modification to the statute was replacing the word
“powers” with the word “authority.” Because previous judicial
pronouncements have interpreted the meaning of “powers”
consistent with the meaning of “authority,” often using the two
terms interchangeably, see, e.g., Softsolutions, Inc. v. Brigham
Young Univ., 2000 UT 46, ¶ 15, 1 P.3d 1095; Buzas Baseball, 925
P.2d at 949, case law interpreting the previous version of this
subsection remains applicable to the current embodiment of the
statute.
2 Duke and Cardenas did not raise the issue of the scope of
the arbitration agreement before either the district court or
this court. We therefore express no opinion as to whether the
arbitrator’s award extends beyond the scope of that agreement.
3 No. 20051036
proceedings. The second is the standard applicable to the
district court’s review of the arbitration award. Buzas
Baseball, Inc. v. Salt Lake Trappers, Inc., 925 P.2d 941, 947
(Utah 1996).
¶7 Our review of the district court’s ruling involves
statutory and constitutional interpretation, both of which
involve conclusions of law that we review for correctness,
granting no deference to the district court. E.g., MacFarlane v.
State Tax Comm’n, 2006 UT 25, ¶ 9, 134 P.3d 1116 (statutory
interpretation); Grand County v. Emery County, 2002 UT 57, ¶ 6,
52 P.3d 1148 (Utah constitutional interpretation).
¶8 A district court’s review of an arbitration award
should be narrowly confined to those grounds established by
statute. Intermountain Power Agency v. Union Pac. R.R. Co., 961
P.2d 320, 322-23 (Utah 1998); Pac. Dev., L.C. v. Orton, 2001 UT
36, ¶ 6, 23 P.3d 1035. Utah’s Arbitration Act provides that a
district court shall vacate an arbitration award when “an
arbitrator exceeded the arbitrator’s authority.” Utah Code Ann.
§ 78-31a-124(1)(d) (2002). In interpreting the similarly worded
predecessor to this provision,1 we have recognized two situations
where a district court may find that an arbitrator has exceeded
her authority. The first is when the district court determines
that an “arbitrator’s award covers areas not contemplated by the
submission agreement.”2 Buzas Baseball, 925 P.2d at 949; accord
Softsolutions, Inc. v. Brigham Young Univ., 2000 UT 46, ¶ 15, 1
P.3d 1095. The second is when the district court finds that the

No. 20051036 4
award is “‘without foundation in reason or fact.’” Buzas
Baseball, 925 P.2d at 950 (quoting Brotherhood of R.R. Trainmen
v. Cent. of Ga. Ry. Co., 415 F.2d 403, 411-12 (5th Cir. 1969));
accord Softsolutions, 2000 UT 46, ¶ 15.
¶9 Although this court has previously identified only two
situations in which an arbitrator may be found to have exceeded
her authority, we have never stated that this list is exhaustive.
Duke and Cardenas have argued for two additional scenarios in
which a district court should invalidate an arbitration award for
exceeding the proper bounds of the arbitrator’s authority under
Utah Code section 78-31a-124(1)(d).
¶10 First, Duke and Cardenas argue that the legislature has
stripped arbitrators of the authority to remove members and
managers of LLCs under Utah Code sections 48-2c-710(3) and
48-2c-809(1). Because the legislature has granted arbitrators
the authority to make binding adjudications of controversies
under the Utah Uniform Arbitration Act, Utah Code Ann.
§§ 78-31a-101 to -131 (2002 & Supp. 2006), it is fully within the
legislature’s power to limit an arbitrator’s authority to resolve
certain issues. Thus, an arbitrator’s attempt to resolve issues
forbidden by statute would fit squarely within the plain meaning
of Utah Code section 78-31a-124(1)(d), which prohibits
arbitrators from exceeding their authority.
¶11 Duke and Cardenas also argue that the Utah Constitution
forbids removing members and managers of LLCs without a judicial
proceeding. As we have noted above, arbitrators receive their
authority to adjudicate claims from the legislature. Id.
§§ 78-31a-101 to -131. In turn, the legislature’s authority to
enact laws is limited by the Utah Constitution. State ex rel.
Breeden v. Lewis, 72 P. 388, 389 (Utah 1903). It therefore
follows that the legislature cannot invest an arbitrator with
authority to do indirectly what it could not do directly under
the Utah Constitution. Accordingly, an arbitration award that
violates a provision of the Utah Constitution would also exceed
the arbitrator’s authority.
¶12 Because Duke and Cardenas’ arguments fall within one of
the specific statutory grounds for district court review of an
arbitration award, and because this court does not cede any
deference to the district court’s conclusions of law, we review
de novo the question of whether the arbitrator exceeded his
authority.

5 No. 20051036
ANALYSIS
¶13 Duke and Cardenas present three main challenges to the
arbitrator’s award, claiming that (1) Utah Code sections
48-2c-710(3) and 48-2c-809(1) forbid the removal of a member or
manager of a limited liability company absent a judicial
determination; (2) the due process and open courts provisions of
the Utah Constitution forbid the removal of a member or manager
of a limited liability company absent a judicial determination;
and (3) the arbitration award was invalid because it contained no
findings in support of the award. Duke and Cardenas also seek an
award of attorney fees, costs, and interest, and the Grahams
similarly seek an award of their fees and costs associated with
this appeal. We address each of these arguments in turn.
I. STATUTORY INTERPRETATION OF UTAH CODE SECTIONS
48-2c-710(3) AND 48-2c-809(1)
¶14 Duke and Cardenas first assert that the arbitrator
exceeded his authority by ordering remedies precluded by the Utah
legislature in the LLC Act, specifically Utah Code sections
48-2c-710(3) and 48-2c-809(1). Utah Code section 48-2c-710
describes the methods by which a member may be expelled from an
LLC. It provides:
A member of a company may be expelled:
(1) as provided in the company’s
operating agreement;
(2) by unanimous vote of the other
members if it is unlawful to carry on
the company’s business with the member;
or
(3) on application by the company or
another member, by judicial
determination that the member:
(a) has engaged in wrongful conduct
that adversely and materially
affected the company’s business;
(b) has willfully or persistently
committed a material breach of the
articles of organization or
operating agreement or of a duty
owed to the company or to the other
members under Section 48-2c-807; or

No. 20051036 6
(c) has engaged in conduct relating
to the company’s business which
makes it not reasonably practicable
to carry on the business with the
member.
Utah Code Ann. § 48-2c-710 (2002). Utah Code section 48-2c-809
governs judicial removal of managers of LLCs. It provides:
(1) The district court of the county in
this state where a company’s designated
office is located, or if it has no designated
office in this state, its registered office
is located, may remove a manager of a
manager-managed company in a proceeding
commenced either by the company or by its
members holding at least 25% of the interests
in profits of the company if the court finds
that:
(a) the manager engaged in fraudulent or
dishonest conduct or gross abuse of
authority or discretion with respect to
the company; and
(b) removal is in the best interests of
the company.
Id. § 48-2c-809(1).
¶15 To advance their argument that only courts may remove
members and managers of LLCs, Duke and Cardenas focus on the
language of the LLC Act that provides for the expulsion of
members through a “judicial determination,” id. § 48-2c-710(3),
and the removal of managers by a “district court,” id.
§ 48-2c-809(1). The plain statutory language, however, does not
explicitly limit removal to court decree. It does not provide
that members may exclusively be removed by judicial
determination, or that managers may be removed only by a court.
Duke and Cardenas’ proposed interpretation instead relies upon
the interpretive maxim expressio unius est exclusio alterius or
the inclusion of one thing implies the exclusion of the
alternative. See Field v. Boyer Co., 952 P.2d 1078, 1086-87
(Utah 1998); 2A Norman J. Singer, Statutes and Statutory
Construction §§ 47:23-25 (2000); Black’s Law Dictionary 602 (7th
ed. 1999). In short, Duke and Cardenas propose an interpretation
in which the provision of a judicial method of removal implies
the legislative intent to deny the power of removal to
arbitrators.

7 No. 20051036
¶16 To test Duke and Cardenas’ contentions, we resort to
our well-worn canons of statutory construction. “When
interpreting statutes, our primary goal is to evince the true
intent and purpose of the Legislature.” State v. Martinez, 2002
UT 80, ¶ 8, 52 P.3d 1276 (internal quotation marks omitted). The
first step of statutory interpretation is to evaluate the “best
evidence” of legislative intent, namely, “the plain language of
the statute itself.” Id. (internal quotation marks omitted).
“[T]he plain language of a statute is to be read as a whole, and
its provisions interpreted in harmony with other provisions in
the same statute and with other statutes under the same and
related chapters.” State v. Schofield, 2002 UT 132, ¶ 8, 63 P.3d
667 (internal quotation marks omitted).
¶17 Utilizing these interpretive tools, we find that Utah
statutes do not forbid an arbitrator to remove members or
managers of LLCs. First, the LLC Act clearly provides that
judicial action is not the exclusive method for removing members
and managers inasmuch as it allows removal through mechanisms
described in a company’s operating agreement. Second, the Utah
Arbitration Act broadly defines the scope of an arbitrator’s
authority.
A. The LLC Act
¶18 The LLC Act, taken as a whole, does not support the
negative implication advanced by Duke and Cardenas. In their
briefing, Duke and Cardenas focus on the language granting courts
the power to remove members and managers to argue that
arbitrators are implicitly denied a similar power. A reading of
the entire statute, however, reveals that other methods of
removal are explicitly provided for in the Act, including removal
through mechanisms specified in an LLC’s operating agreement.
¶19 The LLC Act expressly provides that members of an LLC
may be expelled in ways other than judicial proceedings. One of
those methods is through the provisions of a company’s operating
agreement. Utah Code Ann. § 48-2c-710(1) (2002). The Act
similarly provides that judicial removal is not the only method
of removing managers of an LLC. It states that “any manager may
be removed with or without cause by the members, at any time, by
the decision of members owning a majority of the profits
interests in the company.” Id. § 48-2c-804(6)(e). Of greater
relevance to the question before us, though, the LLC Act grants
substantial latitude to the members of an LLC to determine the
methods of removing a manager through the operating agreement:
“[A]n operating agreement may modify the rules of any provision
of this chapter that relates to[] the management of the company

3 The Act specifically prohibits the modification of certain
provisions listed in subsection 48-2c-120(1). Although the
operating agreement may not “vary the right to expel a member
based on any event specified in Subsection 48-2c-710(3),” Utah
Code Ann. § 48-2c-120(1)(f) (2002), the Act does not limit an
operating agreement’s authority to devise additional methods of
expulsion or removal.
No. 20051036 8
. . . .”3 Id. § 48-2c-502(1). In short, the LLC Act grants
broad authority to the members of an LLC to override its default
provisions relating to “the management of the company” through
recognizing the specific terms contained in a company’s operating
agreement, including those relating to removal of a manager.
¶20 Thus, under the LLC Act, both members and managers may
be removed through mechanisms described in a company’s operating
agreement. This includes removal through agreements to
arbitrate. Because removal through arbitration fits within the
scheme of the LLC Act, we conclude that the Act, taken as a
whole, does not support the negative implication advanced by Duke
and Cardenas.
B. The Arbitration Act
¶21 Our conclusion that the legislature did not intend to
limit the mechanism for removing members and managers to judicial
decree is also consistent with the provisions of another
legislative enactment, the Utah Arbitration Act, Utah Code Ann.
§§ 78-31a-101 to -131. The Arbitration Act defines an
arbitrator’s authority to resolve disputes broadly:
An agreement contained in a record to submit
to arbitration any existing or subsequent
controversy arising between the parties to
the agreement is valid, enforceable, and
irrevocable except upon a ground that exists
at law or in equity for the revocation of a
contract.
Utah Code Ann. § 78-31a-107 (2002) (emphasis added). Thus,
“parties can agree to arbitrate any controversy,” Miller v. USAA
Cas. Ins. Co., 2002 UT 6, ¶ 33, 44 P.3d 663, including the
removal of members or managers of an LLC. The Arbitration Act
also grants comprehensive discretion to arbitrators in selecting
remedies:
[A]n arbitrator may order any remedies as the
arbitrator considers just and appropriate

9 No. 20051036
under the circumstances of the arbitration
proceeding. The fact that a remedy could not
or would not be granted by the court is not a
ground for refusing to confirm an award under
Section 78-31a-123 or for vacating an award
under Section 78-31a-124.
Utah Code Ann. § 78-31a-122(3) (2002). Rather than implying that
an arbitrator has limited options in crafting remedies, as argued
by Duke and Cardenas, section 78-31a-122 endows arbitrators with
wide latitude. Indeed, an arbitrator “may order any remedies as
the arbitrator considers just and appropriate under the
circumstances.” Id. (emphasis added). These broad grants of
authority to resolve controversies and award remedies are
consistent with our conclusion that an arbitrator may be
delegated the authority to expel members and remove managers of
an LLC.
¶22 In sum, we reject Duke and Cardenas’ statutory
argument. Utah Code sections 48-2c-710(3) and 48-2c-809(1) do
not imply that arbitrators may not remove members and managers,
because the LLC Act allows members to grant such authority to
arbitrators in their operating agreement. And even if such a
negative implication existed, the specific provisions of the
Arbitration Act refute any such implied result.
II. THE DUE PROCESS AND OPEN COURTS CLAUSES
OF THE UTAH CONSTITUTION
¶23 Duke and Cardenas also assert that the arbitrator’s
order expelling them as WCDC members and removing Duke as a WCDC
manager violated their constitutional rights to a court
proceeding under the due process and open courts provisions of
the Utah Constitution. The due process clause provides that
“[n]o person shall be deprived of life, liberty or property,
without due process of law.” Utah Const. art. I, § 7. The open
courts clause states:
All courts shall be open, and every
person, for an injury done to him in his
person, property or reputation, shall have
remedy by due course of law, which shall be
administered without denial or unnecessary
delay; and no person shall be barred from
prosecuting or defending before any tribunal
in this State, by himself or council, any
civil cause to which he is a party.

4 A litigant’s constitutional rights are violated, however,
if he is denied his day in court absent an express agreement to
arbitrate or if his waiver of the judicial process is not
“voluntary, intelligent, and knowing.” Jenkins v. Percival, 962
P.2d 796, 799 (Utah 1998). A nonjudicial remedy that exceeds the
scope of the waiver also violates constitutional protections.
Miller, 2002 UT 6, ¶ 48. Because Duke and Cardenas did not raise
an argument as to the scope of the arbitration agreement before
the district court or this court, but only attacked the
constitutionality of the arbitration proceedings in general, we
express no opinion as to whether the arbitrator’s award exceeded
the scope of the arbitration agreement.
No. 20051036 10
Utah Const. art. I, § 11. Both of these constitutional
provisions have been interpreted to guarantee that litigants will
have their “day in court.” Miller v. USAA Cas. Ins. Co., 2002 UT
6, ¶ 38, 44 P.3d 663.
¶24 Duke and Cardenas’ constitutional argument fails
because we have clearly held that arbitration proceedings do not
violate either of these provisions so long as the parties have
waived their right to a judicial proceeding through an express
agreement to arbitrate.4 Jenkins v. Percival, 962 P.2d 796, 799
(Utah 1998); Lindon City v. Eng’rs Constr. Co., 636 P.2d 1070,
1074 (Utah 1981); see also Miller, 2002 UT 6, ¶ 48. Duke and
Cardenas have not challenged the validity of the arbitration
clause contained within the operating agreement of WCDC. Nor
have they made an argument as to why we should overturn our clear
precedent in this area. We therefore reject their constitutional
claims.
III. THE ARBITRATOR’S DUTY TO MAKE A RECORD
¶25 The Arbitration Act provides that “[a]n arbitrator
shall make a record of an award.” Utah Code Ann. § 78-31a-120(1)
(2002). Duke and Cardenas interpret this language to require
that arbitrators make findings in support of an award. While the
arbitrator in this case included written comments supporting his
award, he stated that they were “not to be construed or taken to
be findings of fact or conclusions of law.” Duke and Cardenas
accordingly argue that the arbitrator did not fulfill the
statutory requirement of making “a record of an award.”
¶26 We decline to address this argument because Duke and
Cardenas failed to preserve it for appeal. “‘[A]s a general
rule, claims not raised before the trial court may not be raised
on appeal.’” State v. Cram, 2002 UT 37, ¶ 9, 46 P.3d 230
(quoting State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346). In

11 No. 20051036
order to be preserved, an issue must be raised in the trial court
such that the trial court has an opportunity to rule on the
issue. Spears v. Warr, 2002 UT 24, ¶ 11, 44 P.3d 742.
¶27 In their briefing, Duke and Cardenas argue that the
issue was raised below during an exchange between their attorney
and the district court. In that exchange, their attorney
expressed some confusion over the status of the arbitrator’s
written comments and questioned whether the court intended to
include them in his judgment confirming the award. Nowhere,
however, did counsel for Duke and Cardenas mention Utah Code
section 78-31a-120(1) or raise the argument that the award was
somehow defective because it included “comments” rather than
“findings.” Because this argument was not adequately raised to
allow the district court an opportunity to rule on it, it was not
properly preserved.
¶28 We will not address the merits of an argument that has
not been preserved absent either plain error or exceptional
circumstances. State v. Winfield, 2006 UT 4, ¶ 14, 128 P.3d
1171. “When a party seeks review of an unpreserved [issue], we
require that the party articulate an appropriate justification
for appellate review.” State v. Pinder, 2005 UT 15, ¶ 45, 114
P.3d 551. Duke and Cardenas have made no effort to argue that
this court should consider their unpreserved argument because of
plain error or exceptional circumstances. Therefore, because the
issue has not been preserved, and because no justification for
appellate review has been articulated, we decline to reach it.
IV. ATTORNEY FEES
¶29 Duke and Cardenas assert that the district court abused
its discretion in refusing to award them attorney fees under Utah
Code section 78-31a-126(3). This section provides that “[o]n
application of a prevailing party to a contested judicial
proceeding under Section 78-31a-123, 78-31a-124, or 78-31a-125,
the court may add reasonable attorney’s fees and other reasonable
expenses of litigation incurred in a judicial proceeding after
the award is made.” Utah Code Ann. § 78-31a-126(3) (2002).
Because Duke and Cardenas lost in the district court and did not
prevail on this appeal, they are not prevailing parties entitled
to attorney fees under this statute.
¶30 Relying on the same statute, Utah Code section
78-31a-126(3), the Grahams also assert that they are entitled to
an award of their costs and attorney fees incurred in connection
with this appeal. We have noted under a previous version of this
provision that courts may award fees incurred during an appeal.
Buzas Baseball, Inc. v. Salt Lake Trappers, Inc., 925 P.2d 941,

No. 20051036 12
952 (Utah 1996) (interpreting Utah Code Ann. § 78-31a-16 (2002)
(repealed 2003)). Because an appeal is a contested judicial
proceeding after an arbitration award is made, Utah Code section
78-31a-126(3) also authorizes courts to award fees for appeals
relating to the validity of an arbitration award.
¶31 The award of attorney fees and costs under this statute
is not automatic, however, but is left to the discretion of the
court. Paul deGroot Bldg. Servs., L.L.C. v. Gallacher, 2005 UT
20, ¶ 23, 112 P.3d 490. Because the statute itself gives no
guidance as to how this discretion should be exercised, we look
to the policies behind it. See Buzas Baseball, 925 P.2d at 953;
Paul deGroot, 2005 UT 20, ¶¶ 22-23. The inclusion of an attorney
fees provision within the Arbitration Act “suggests that our
policies favor the enforceability of arbitration awards and
discourage relitigation of valid awards.” Buzas Baseball, 925
P.2d at 953. Against this policy of finality, we must balance
the need not to unduly burden parties with the threat of fees
when they have legitimate concerns about the legal validity of an
award.
¶32 To balance these competing concerns, we assess the
merits of the party’s arguments. An appeal that has little legal
support would likely merit an award of fees to discourage
unnecessary delays and costs in enforcing an award, while a close
case would not. In light of the Arbitration Act’s mandate of
broad authority to arbitrators to craft remedies and our clear
precedent establishing the constitutionality of arbitration, we
find that Duke and Cardenas’ appeal has little legal support. We
therefore award the Grahams their reasonable attorney fees and
litigation costs associated with this appeal and remand the
matter to the district court to determine the amount of those
reasonable fees. Because the Grahams did not cross-appeal the
district court’s judgment, which did not award fees, they are not
entitled to any fees or costs associated with the prior
proceedings before the district court.
CONCLUSION
¶33 Utah Code sections 48-2c-710(3) and 48-2c-809(1) do not
prohibit an arbitrator from expelling a member or removing a
manager of an LLC. Additionally, the due process and open courts
clauses of the Utah Constitution are not violated when members or
managers are removed by an arbitrator so long as there is a valid
arbitration agreement covering such issues. Because Duke and
Cardenas did not prevail on this appeal, they are not eligible
for attorney fees. We do, however, award reasonable attorney
fees and costs associated with this appeal to the Grahams. We
therefore affirm the district court’s order confirming the

13 No. 20051036
arbitration award and remand to the district court for the
purpose of determining the amount to be awarded.
---
¶34 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.