          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA



                                 January 2016 Term
                                    __________               FILED
                                                         March 15, 2016
                                    No. 11-1613             released at 3:00 p.m.
                                                          RORY L. PERRY, II CLERK

                                    __________          SUPREME COURT OF APPEALS

                                                             OF WEST VIRGINIA


                             RYAN CUNNINGHAM,

                                  Petitioner,


                                         v.

     RONALD F. LEGRAND and MOUNTAIN COUNTRY PARTNERS, LLC,
                              Respondents.
        ______________________________________________________

                  Appeal from the Circuit Court of Kanawha County

                             Honorable James C. Stucky

                            Civil Action No. 10-C-1269


                                    AFFIRMED


         ________________________________________________________

                            Submitted: February 24, 2016

                               Filed: March 15, 2016


Richard Neely, Esq.                           William F. Dobbs, Jr., Esq.
Neely & Callaghan                             William C. Ballard, Esq.
Charleston, West Virginia                     Elizabeth A. Amandus, Esq.
Counsel for Petitioner                        Jackson Kelly PLLC
                                              Charleston, West Virginia
                                              Counsel for Chapter 11 Trustee of
                                              The Bankruptcy Estate of Mountain
                                              Country Partners, LLC


JUSTICE LOUGHRY delivered the Opinion of the Court.
                                       SYLLABUS



              Manifest disregard of the law is not recognized as a valid statutory basis for

challenging an arbitration award made pursuant to the provisions of the Federal Arbitration

Act, 9 U.S.C. §§ 1-16 (2012).
LOUGHRY, Justice:



                 The petitioner, Ryan Cunningham, appeals from the November 2, 2011, order

of the Circuit Court of Kanawha County confirming an arbitration award and entering

judgment on that award.1 Seeking to obtain a vacatur of the arbitration award, the petitioner

argues that: the arbitrator manifestly disregarded the law of West Virginia; the arbitrator

considered hearsay evidence; and the arbitrator refused to reopen the proceedings for

rebuttal evidence.2 In response to these assignments of error, the bankruptcy trustee3 for

respondent Mountain Country Partners, LLC (“Mountain Country”) argues that the

petitioner has failed to identify any valid basis for setting aside the arbitration award. We

concur and accordingly affirm the lower court’s ruling in this matter. Our decision is

compelled both by the constricted scope of review for an arbitral award and the petitioner’s

failure to raise even a colorable basis for vacating the award.




       1
        This appeal was subject to an automatic stay pursuant to the provisions of 11 U.S.C.
§ 362(a) (2012) by virtue of an involuntary bankruptcy petition filed against respondent
Mountain Country Partners, LLC in the United States Bankruptcy Court for the Southern
District of West Virginia. By order entered on May 12, 2015, this Court directed that the
automatic stay be lifted.
       2
       Petitioner was represented by counsel when the subject appeal was filed. This Court
granted his attorney’s motion to withdraw as counsel by order entered on May 12, 2015. Mr.
Cunningham was not represented by counsel at oral argument.
       3
           See supra note 1.

                                              1

                          I. Factual and Procedural Background

               Mountain Country, a West Virginia limited liability company, was formed for

the purpose of acquiring land and mineral rights to develop oil and gas properties in West

Virginia and Kentucky.4 On October 10, 2006, Mr. Cunningham, Ronald F. LeGrand, and

four additional individuals signed the Operating Agreement of Mountain Country

(“Operating Agreement”). While the petitioner managed the day-to-day operations of

Mountain Country for a salary,5 Mr. LeGrand was the actual manager due to his controlling

voting percentage. Dissatisfied with the venture’s lack of profit and fearful that Mr.

LeGrand was wrongfully disposing of assets and/or committing fraud,6 the petitioner

instituted a civil action in the Circuit Court of Kanawha County on July 14, 2010. He

sought injunctive relief for the purpose of gaining “access to all corporate records including

all investor contact information . . . and [requested] that he be given operating control of




       4
        The subject properties were purchased at a public auction from the bankruptcy estate
of Buffalo Properties for $7.1 million. Ronald F. LeGrand organized investors to purchase
the properties after learning of their availability from a friend of the petitioner’s while giving
seminars on real estate investing. Mr. LeGrand is not a party to this appeal.
       5
       His managerial duties included the purchasing of equipment, the maintenance of
equipment, and the supervision of employees. Additionally, Mr. Cunningham obtained
permits, procured bonds, and oversaw matters involving compliance.
       6
        Mr. LeGrand was investigated by the Securities and Exchange Commission for civil
fraud. In connection with charges that he and another person induced investors to purchase
land and other assets from a bankrupt oil and gas company headquartered in West Virginia
while misrepresenting the degree of risk and the amount of expected return, Mr. LeGrand
agreed to a $150,000 fine by a consent decree.

                                                2

Mountain Country Partners, LLC.”7 Because the petitioner had not submitted his claims to

arbitration, as required by the Operating Agreement,8 the respondents sought to dismiss the

complaint.



              Before the matter proceeded to arbitration pursuant to the mandatory

arbitration clause contained in the Operating Agreement,9 a ruling was obtained with regard

to the petitioner’s attempt to gain access to the company records. Judge John Hrko, sitting

in for Judge Stucky, ruled by order entered on November 5, 2010, that “West Virginia Code

31B-4-408 gives a member of a West Virginia LLC the absolute right to review all of the

books and records of the LLC . . . .” Pursuant to that order, Mountain Country was directed

to give the petitioner reasonable access to “all books and records.”10 The underlying case

was stayed by the circuit court pending arbitration.


       7
       The petitioner sought access to the company’s books pursuant to West Virginia Code
§ 31B-4-408 (2015) (providing authority for members of limited liability company to access
company’s records).
       8
        Pursuant to the terms of the Operating Agreement, the petitioner, along with the
other signatories, had agreed that either party to a grievance could initiate arbitration
proceedings, that the arbitration would be governed by the Federal Arbitration Act [9 U.S.C.
§§ 1-16], that the arbitration would transpire in Duval County, Florida, that damages were
limited to compensatory damages, and “that the decision of the arbitrator shall be final and
binding and enforceable in a court of law.”
       9
       There was no dispute in this case with regard to the requirement that the matter be
resolved through arbitration; there was also no dispute as to the selection of the arbitrator.
       10
        When Mr. LeGrand sought a protective order with regard to document production,
Judge Stucky referred the issue to the arbitrator.

                                              3

              During the arbitration proceeding, a dispute arose when the petitioner sought

to discover the identity of Mountain Country’s investors. He argued that the provisions of

West Virginia Code § 31B-4-408 (2015) entitled him to gain access to the investor list in

addition to the company’s books and records he had already been permitted to review.

Citing to the provision of the statute that excepts disclosure of business records “to the

extent the demand or the information demanded is unreasonable or otherwise improper

under the circumstances,” the arbitrator denied the petitioner access to the investor list. Id.

at § 31B-4-408(b)(2). In furtherance of the ruling, the arbitrator found that the “identities

of the additional investors in MCP [Mountain Country] are irrelevant to the claims and

counterclaims advanced in this arbitration.”



              A three-day arbitration hearing commenced on April 18, 2011. At issue were

the petitioner’s singular claim predicated on seeking control of Mountain Country11 as well

as five counterclaims filed by Mr. LeGrand and Mountain Country against the petitioner.12

       11
         Specifically, the petitioner sought to have the Operating Agreement reformed to
remove Mr. LeGrand from having control of Mountain Country. The petitioner sought to
have a new manager elected by majority vote of the members, the appointment of a receiver,
or his appointment as manager subject to confirmation or rejection by a majority of the
members. The arbitrator denied this relief, finding no legal basis for the petitioner’s request.
       12
        Those counterclaims asserted that the petitioner had (1) converted 855 barrels of
Mountain Country oil for use by one of his unrelated ventures, Cunningham Energy; (2)
converted $29,700 of Mountain Country equipment to use for his other ventures,
Cunningham Energy and Raven Ridge; (3) converted Mountain Country funds to pay his
personal debts and expenses, including $17,400 in personal air travel, $7,150 in personal
reimbursements to himself for excessive and inappropriate website design fees, and $14,000

                                               4

The evidence presented at the hearing included witness testimony, deposition testimony, and

documentary evidence. The arbitrator advised the parties that he would take all evidence

“for what it’s worth and discard it if it’s not relevant.” By agreement of the parties, all

documents were introduced into evidence as authentic and admissible. The arbitrator found

all the witness testimony to be credible.



              On the third day of the arbitration hearing, the petitioner did not attend the

proceedings; his counsel failed to seek either a postponement or a continuance.13 Through

a decision issued on July 5, 2011, the arbitrator denied the petitioner’s claim but awarded

relief against him based on the respondents’ counterclaims. Mr. Cunningham was ordered

by the arbitrator to pay Mountain Country $113,717.50 in damages and $162,442.00 in

attorney’s fees and costs.14 The petitioner did not offer any testimony or defense in response

to the counterclaims advanced by the respondents.15 Only when the award was issued did



in legal fees related to a separate, failed venture known as ASHRO; (4) falsified Mountain
Country asset values for his personal benefit; and (5) spoliated evidence of his and his
agents’ malfeasance in regard to Mountain Country.
       13
         Purportedly, his failure to attend the final day of the hearing was due to a relapse
of a prior case of sunstroke, brought on by the 93 degree heat of Jacksonville, Florida, where
the hearing was taking place.
       14
        The arbitrator ruled in favor of Mr. LeGrand and Mountain Country on three of the
five counterclaims pertaining to conversion of company property and company funds.
       15
         His counsel’s explanation was strategy driven: viewing the evidence against his
client as unreliable, he assumed it would be disregarded by the arbitrator.

                                              5

the petitioner seek to reopen the proceedings for the purpose of submitting rebuttal evidence.

This request was denied by the arbitrator.



              When the respondents sought to confirm the arbitration award in the circuit

court, the petitioner filed a motion to vacate. The circuit court denied that motion and this

appeal followed.



                                 II. Standard of Review

              As this Court recently acknowledged, “‘the scope of judicial review for an

arbitrator’s decision is among the narrowest known at law.’” CDS Family Trust, LLC v.

ICG, Inc., No. 13-0375, 2014 WL 184441, at *3 (W.Va. Jan. 15, 2014) (memorandum

dec’n) (citing MCI Constructors, LLC V. City of Greensobro, 610 F.3d 849, 857 (4th Cir.

2010)). “‘Awards by arbitration are to be favored and liberally construed and are not to be

set aside unless they appear to be founded on grounds clearly illegal.’” Board of Educ. v.

W. Harley Miller, Inc. (“Harley Miller II”), 160 W.Va. 473, 494 n.7, 236 S.E.2d 439, 451

n.7 (1977) (quoting Syl. Pt. 3, Hughes v. Nat’l Fuel Co., 121 W.Va. 392, 3 S.E.2d 621

(1939)). Because the full panoply of evidentiary and other procedural rules that govern

cases at law do not apply to arbitration matters, even greater deference is given to decisions

made by arbitrators which pertain to matters of procedure. See Harley Miller II, 160 W.Va.

at 485, 236 S.E.2d at 446. Bearing these standards in mind, we proceed to consider whether


                                              6

the circuit court committed error by its decision to confirm and enter the award of the

arbitrator.



                                        III. Discussion

                 The petitioner acknowledges the limited grounds upon which vacatur of an

arbitral award may be sought under the governing Federal Arbitration Act (“FAA”).16 See

9 U.S.C. §§ 1-16 (2012). Under section ten of the FAA, an arbitration award may be

vacated for the following four grounds:

                 (1) where the award was procured by corruption, fraud, or
                 undue means;
                 (2) where there was evident partiality or corruption in the
                 arbitrators, or either of them;
                 (3) where the arbitrators were guilty of misconduct in refusing
                 to postpone the hearing, upon sufficient cause shown, or in
                 refusing to hear evidence pertinent and material to the
                 controversy; or of any other misbehavior by which the rights of
                 any party have been prejudiced; or
                 (4) where the arbitrators exceeded their powers, or so
                 imperfectly executed them that a mutual, final, and definite
                 award upon the subject matter submitted was not made.

Id. at § 10. Seeking to expand those statutory grounds, the petitioner suggests that the

United States Supreme Court has sanctioned an additional basis for obtaining review of an

arbitral award: “manifest disregard for the law.”17 See Wilko v. Swan, 346 U.S. 427, 436

       16
            See supra note 8.
       17
        By asserting “manifest disregard of the law” as a basis for review of the arbitral
award, the petitioner maintained that the arbitrator, in ruling on a preliminary matter,
ignored the provisions of West Virginia Code § 31B-4-408 that govern a member’s access

                                               7

(1953), overruled on other grounds, Rodriguez de Quijas v. Shearson/American Express,

Inc., 490 U.S. 477 (1989) (recognizing distinction between arbitrator’s interpretation of law

and manifest disregard of law for purposes of judicial review).



              In Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008), the

United States Supreme Court was asked to determine whether the FAA precludes a federal

court from enforcing a clearly expressed agreement that provided for more expansive

judicial review of an arbitration award than the much narrower standard of review set forth

in the FAA. The arbitration agreement at issue in Hall Street contained a provision that

permitted the parties to seek judicial review for plain legal errors–a provision that does not

exist as a stated ground for review under the FAA. In resolving whether a private agreement

could effectively expand the grounds for judicial review under the FAA, the high court was

clear that sections 10 and 1118 of the FAA “provide exclusives regimes for the review

provided by the statute.” Id. at 590. As part of its ruling in Hall Street, the high court

commented on the theoretical existence of authority independent of the FAA–provided by

state statutory or common law– for review of arbitration awards. See id. Significantly,



to the records of a limited liability company.
       18
         Section 11 provides for a modification or correction of the arbitral award (a) where
there was an evident material miscalculation of figures or an evident material mistake in the
description of any person, thing, or property referred to in the award; (b) where the
arbitrators have awarded upon a matter not submitted to them; and (c) where the award is
imperfect in matter of form not affecting the merits of the controversy. See 9 U.S.C. § 11.

                                              8

however, this brief recognition of hypothetical non-FAA grounds for reviewing arbitration

awards has, to date, not been acted upon by the Supreme Court.



              As a result, the petitioner’s suggestion to this Court that the United States

Supreme Court has sanctioned the assertion of a particular non-FAA ground for seeking to

vacate an arbitration award lacks both candor and legal support.19 Because the high court

has declined to revisit the issue of whether “manifest disregard of the law” has any

continued viability after Hall Street as an independent ground for review,20 the lower federal

courts have concluded that the grounds set forth in the FAA remain the only mechanism for

challenging arbitration awards. See PNGI Charles Town Gaming, L.L.C. v. Mawing, 2015

WL 898559 at *1, n.1 (4th Cir. 2015) (“In the wake of the Supreme Court’s decision in Hall

Street, this court has recognized that considerable uncertainly exists ‘as to the continuing

viability of extra-statutory grounds for vacating arbitration awards.’”) (internal citations

omitted); see Sheet Metal Worker’s Int’l Ass’n v. Beckley Mechanical, Inc., 803 F.Supp.2d


       19
         The grounds for vacatur in this case are limited to the grounds provided in the FAA
under the terms of the Operating Agreement. Consequently, the petitioner’s attempt to rely
on Hall Street fails on both procedural and substantive grounds. Not only was there no
attempted expansion within the subject arbitration clause of the scope of judicial review
beyond that expressly provided by the FAA, but further lacking is reference to any state
statute or common law as a basis for the assertion of the “manifest disregard” challenge.
       20
        See Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 672 n.3 (2010)
(“We do not decide whether ‘“manifest disregard”’ survives our decision in Hall Street as
an independent ground for review or as a judicial gloss on the enumerated grounds for
vacatur set forth at 9 U.S.C. §10.”) (internal citation omitted).

                                              9

511, 516 (S.D. W.Va. 2011) (“‘On application for an order confirming the arbitration award,

the court must grant the order unless the award is vacated, modified, or corrected as

prescribed in [9 U.S.C. §§ 10-11]. . . .’”) (quoting Hall Street, 552 U.S. at 587) (internal

citations omitted).



              In considering this issue, the circuit court correctly ruled that “[m]anifest

disregard for the law is not among the enumerated bases to vacate an award” under the FAA.

See Ramos-Santiago v. U.P.S., 524 F.3d 120, 124 n.3 (1st Cir. 2008) (“We acknowledge the

Supreme Court’s recent holding in Hall Street . . . that manifest disregard of the law is not

a valid ground for vacating or modifying an arbitral award in cases brought under the

Federal Arbitration Act . . . .”). Proceeding as though such a basis for review did exist for

argument purposes only, the circuit court opined that the facts of this case fail to evidence

any disregard of the law by the arbitrator. The specific legal concern raised by the petitioner

was his contention that the arbitrator misapplied the provisions of West Virginia Code §

31B-4-408 when it decided that the petitioner’s “request for information was unreasonable

and improper under the circumstances.” Upon its review of this matter, the circuit court

ruled that it “s[aw] no factual or legal basis for overturning that finding.” We concur.



              While the petitioner took the view that he had a right to all of the company

records, including the identity of its investors, the statute is not written in absolute terms.


                                              10

Notwithstanding the initial directive of Judge Hrko that “all” records be disclosed, the

statute clearly contemplates situations such as that presented in this case where a particular

document request may be determined to be either unreasonable or improper under the

circumstances. The statute describes two scenarios. A limited liability company is mandated

to provide “[w]ithout demand, information concerning the company’s business or affairs

reasonably required for the proper exercise of the member’s rights and performance of the

member’s duties under the operating agreement or this chapter.” W.Va. Code § 31B-4­

408(b)(1). In contrast to that obligation, a limited liability company, upon demand, shall

provide “other information concerning the company’s business or affairs, except to the

extent the demand or the information demanded is unreasonable or otherwise improper

under the circumstances.” Id. at § 31B-4-408(b)(2) (emphasis supplied).



              In making its ruling with regard to the petitioner’s request for disclosure of the

investors in Mountain Country, the arbitrator first considered why Mr. Cunningham was

seeking the investor list. His stated reason was so that he could “explore whether investors

received payouts of MCP income.” The arbitrator found that “this information is readily

ascertainable from the financial books and records of MCP, all of which have already been

provided to Cunningham.” Further addressing the legitimacy of the request, the arbitrator

determined that the “identities of the additional investors in MCP are irrelevant to the claims

and counterclaims advanced in this arbitration.” Finding the request “unreasonable and


                                              11

improper under the circumstances,” the arbitrator concluded that the request was “not

appropriate, as it will not further the needs of the parties and will not make discovery in this

matter expeditious and cost effective.” 21



              As part of its review of the arbitral award for “manifest disregard,” the circuit

court addressed the constrained nature of its review: “A court ‘is limited to determining

whether the arbitrators did the job they were told to do–not whether they did it well, or

correctly, or reasonably, but simply whether they did it.’” (citing Remney v. PaineWebber,

Inc., 32 F.3d 143, 146 (4th Cir. 1994), emphasis supplied by circuit court); accord Oxford

Health Plans LLC v. Sutter, 133 S.Ct. 2064, 2070-71 (2013) (recognizing that court may not

correct even “grave error” of arbitrator and stating that arbitrator’s construction of contract

“holds, however good, bad, or ugly”); Wilko, 346 U.S. at 438 (“Congress has afforded

participants in transactions subject to its legislative power an opportunity generally to secure

prompt, economical and adequate solution of controversies through arbitration if the parties

are willing to accept less certainty of legally correct adjustment.”). The circuit court

correctly recognized that the petitioner’s lack of allegations of fraud or other illegal conduct

effectively rendered the merits of the arbitrator’s decision beyond review. See Barber v.


       21
         This finding was made pursuant to Rule 11 of the CPR [Conflict Prevention &
Resolution] Non-Administered Arbitration rules, which authorizes an arbitrator to “facilitate
such discovery as it shall determine is appropriate in the circumstances, taking into account
the needs of the parties and the desirability of making discovery expeditious and cost-
effective.”

                                              12

Union Carbide Corp., 172 W.Va. 199, 203, 304 S.E.2d 353, 357 (1983) (stating that “courts

of this State will not review an arbitration award rendered pursuant to the terms of a

commercial contract except for actual fraud”); Clinton Water Ass’n v. Farmers Constr. Co.,

163 W.Va. 85, 87, 254 S.E.2d 692, 694 (1979) (“It has long been the rule in this State that

where parties have undertaken arbitration, their award is binding and may only be attacked

in the courts on the basis of fraud or on those grounds set out in W. Va. Code, 55-10-4.”);

see also W.Va. Code § 55-10-25 (Supp. 2015) (permitting vacation of arbitral awards on

grounds of corruption, fraud, undue means, evident partiality, and corruption or misconduct

of arbitrator). As this Court stated in Barber, “[i]f arbitration awards can be challenged in

court on any theory other than actual fraud or failure to follow the procedures that were

bargained for in the arbitration clause, then the goals of speed, parsimony, and flexibility are

all entirely defeated. . . .” 172 W.Va. at 203, 304 S.E.2d at 356.



              The petitioner, as the circuit court noted, “cannot claim, as an end-run around

the limited bases for vacatur, that an arbitrator shows ‘evident partiality’ or ‘manifestly

disregarded the law’ simply because he disagrees with the decisions rendered.”22 As the

circuit court sagely observed, “[s]uch a broad interpretation of ‘evident partiality’ or

‘manifest disregard’ would allow courts in every instance to review the merits of the



       22
          The petitioner’s argument with regard to “evident partiality” was that, absent
partiality, the arbitrator could not have ruled against him.

                                              13

arbitrator’s decision and thereby destroy the three goals of effective arbitration.” See id.

(discussing arbitral goals of speed, parsimony, and flexibility). Recognizing the petitioner’s

attempt to relitigate an issue in court that was already resolved through arbitration, the circuit

court properly denied the motion to vacate on grounds of manifest disregard for the law.

See Harley Miller II, 160 W.Va. at 485, 236 S.E.2d at 446. Based on the foregoing, we hold

that manifest disregard of the law is not recognized as a valid statutory basis for challenging

an arbitration award made pursuant to the provisions of the Federal Arbitration Act.23 See

9 U.S.C. §§ 9-10.



                 As a secondary basis for his challenge of the arbitral award, the petitioner

argues that the arbitrator wrongly relied on hearsay evidence and failed to reopen the

proceedings to permit him to submit additional evidence. Turning first to the assignment

grounded in hearsay evidence, we recognize that under the rules applicable to the arbitration

proceeding, the rules of evidence were not required to be followed.24 Juxtaposed against a

       23
          We note additionally that manifest disregard of the law is similarly not a ground for
challenging an arbitration award under the Revised Uniform Arbitration Act that took effect
in this state on July 1, 2015. See W.Va. Code § 55-10-25.
       24
            Pursuant to § 12.2 of the CPR Rules for Non-Administered Arbitration:

                 Testimony may be presented in written and/or oral form as the
                 Tribunal may determine is appropriate. The Tribunal is not
                 required to apply the rules of evidence used in judicial
                 proceedings, provided, however, that the Tribunal shall apply
                 the lawyer-client privilege and the work product immunity. The
                 Tribunal shall determine the applicability of any privilege or

                                               14

professed acknowledgment that the evidentiary rules were inapplicable is the petitioner’s

discordant, hyperbolic complaint that “flagrant disregard for those rules leads to fabulously

unjust results.” Contending that the monetary award of $113,717.50 levied against him was

based upon the “rankest hearsay,” the petitioner frames a test to govern the consideration of

hearsay evidence during arbitration. Seeking to secure the introduction of only reliable

hearsay, he suggests that we sanction hearsay evidence dependent on the status of the

original speaker. By way of illustration, he theorizes that when a public official explains his

actions as being consistent with what the governor instructed, then that testimony should

necessarily be viewed as reliable. In other instances involving non-elected individuals who

are recounting the words of mere lay people, that testimony would presumably be unreliable

under the petitioner’s conjectural litmus test.



              Not only is the petitioner’s hearsay “test” patently self-serving but it wholly

conflicts with the more informal nature of arbitration proceedings. By design, an arbitration

proceeding addresses a legal dispute in a fashion aimed at resolving the matter more

expeditiously and less expensively than might occur in the court system. Dispensation with

the formal rules of evidence and procedure is part of what enables arbitrations to advance




              immunity and the admissibility, relevance, materiality and
              weight of the evidence offered.

                                              15

in an alacritous manner by comparison to judicial proceedings. Articulating the salutary

effect of the procedural shortcuts inherent to arbitrations, this Court previously observed:

                 ‘The parties contract for an arbitrator, not a procedure. Due
                 process does not necessarily mean Anglo-American rules of
                 evidence, nor winner-take-all substantive rules. . . . The system
                 of review of arbitration awards should be set up to avoid delay
                 caused by the losing party in arbitration challenging the award
                 of the arbitrators, especially on mere procedural grounds! The
                 strict rules governing an action at law have never been
                 applicable to an arbitration proceeding. The parties should
                 know this when they agree to arbitrate, and they should not be
                 heard later to complain on an issue of procedure. Arbitration
                 can, and almost inevitably does, decide the substance of the
                 controversy with substantial justice regardless of procedure.’

Harley Miller II, 160 W.Va. at 485, 236 S.E.2d at 446 (emphasis partially supplied and

internal citation omitted) (quoting Board of Educ. v. W. Harley Miller [Harley Miller I], 159

W.Va. 120, 134, 221 S.E.2d 882, 889 (1975) (Neely, J., concurring).



                 While the petitioner cursorily references testimony of specific witnesses that

the respondents offered at arbitration to which he now objects, the record reveals that he did

not challenge that testimony in the arbitral proceeding. Neither did he introduce his own

witnesses or evidence to refute the testimony about which he complains. In explanation, the

petitioner characterizes those decisions as tactical.25 His prognostication that the arbitrator

would reject the respondents’ evidence was a gamble that he lost.



       25
            See supra note 15.

                                                16

               The petitioner specifically linked his need to reopen the arbitration proceeding

to the arbitrator’s reliance on hearsay evidence. The post-award request to introduce rebuttal

evidence is expressly tied to his belief that the arbitrator would “disregard[] rampant hearsay

testimony.” Rather than avowing to discredit hearsay evidence, the arbitrator iterated: “As

I said the very first day, I will take it for what it’s worth and discard it if it’s not relevant.”

The circuit court found that “the Arbitrator never stated that he would not accept or would

ignore relevant hearsay testimony; ‘relevance’ was the only touchstone.” See ARMA,

S.R.O. v. BAE Sys. Overseas, Inc., 961 F.Supp.2d 245, 263 (D.D.C. 2013) (“An arbitrator

has substantial leeway to admit any evidence that it finds useful–even hearsay evidence.”).



               Given its decision that the arbitrator’s consideration of hearsay evidence was

not improper, the circuit court found it unnecessary to address the petitioner’s related request

to reopen the hearing. Solely to address the alleged error, however, the circuit court

proceeded to rule that the arbitrator had the necessary discretion to refuse the petitioner’s

request to reopen the proceedings. The circuit court concluded that the petitioner “was not

deprived of the ability to present evidence . . . .” And “[t]o the extent Cunningham now

points to his alleged illness at the final day of the hearing as a potential issue preventing




                                                17

further testimony, he could have, but did not, seek an extension or continuance before the

hearing was closed.”26



              In seeking to vacate the arbitral award by asserting such a patently procedural

complaint as the need to reopen the proceeding to respond to hearsay evidence, the petitioner

has relied upon improper grounds for relief.27 That a court may vacate an arbitrator’s

decision issued pursuant to the FAA “only in very unusual circumstances” is clear. First

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942 (1995). Further evident is our

appreciation that the procedural grounds asserted by the petitioner in this case do not

constitute the requisite “unusual circumstances.” Id.



                                      IV. Conclusion

              Based on the foregoing, the decision of the Circuit Court of Kanawha County

to confirm the arbitration award and enter judgment on that award is affirmed.

                                                                                   Affirmed.




       26
          The circuit court included as part of its findings: “Cunningham has acknowledged
that the decision to not seek a postponement was a ‘tactical mistake’ and that ‘counsel would
have been more astute’ to do so.”
       27
         As the circuit court recognized, the procedural issue not to reopen the hearing after
the arbitral award had been issued “is beyond the ken of this Court on review.”

                                             18
