Bennett & Koch Construction, LLC, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0959

Bennett & Koch Construction, LLC,
Appellant,

vs.

Denise Jones,
Respondent,

Quicken Loans, Inc.,
Respondent,

Novation Credit Union,
Respondent,

John Doe, et al.,
Defendants.

Filed May 10, 2021
Reversed and remanded
Slieter, Judge

Washington County District Court
File No. 82-CV-18-4172

Daniel W. Voss, The Law Offices of Daniel W. Voss, PLLC, Minneapolis, Minnesota (for
appellant)

Brenda M. Sauro, Adina R. Bergstrom, Sa uro & Bergstrom, PLLC, Oakdale, Minnesota
(for respondent Denise Jones)

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Considered and decided by Hooten, Pres iding Judge; Slieter, Judge; and Klaphake,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
On appeal from the district court’s order partially vacating the arbitrator’s award,
appellant argues that the district court erred by reviewing the arbitrator’s award de novo.
The parties agreed to arbitrat e “all proceedings” in the litigati on. Therefore, all claims
were subject to arbitration and an arbitrator’s award will not be set aside for either mistake
of law or fact. The district cour t, therefore, erred by conducting a de novo review of the
arbitrator’s award. We reverse and remand for reinstatement of the arbitrator’s award.
FACTS
Respondent-homeowner Denise Jones an d appellant-contractor Bennett & Koch
Construction, LLC, (B&K) signed a contract in 2017 to remodel Jones’ home in Stillwater.1
Pursuant to the contract, Jones was to pay B&K a fixed price of $80,000 and any change
was to “be agreed upon in writing.”
The contract contained an arbitration clause which stated: “Any controversy or
claim arising out of or relating to this contract, or the breach thereof, shall be settled by
arbitration administered by the American Arbitration Asso ciation under its Construction

 Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

1 Respondents Quicken Loans, LLC, and Novation Credit Union possess a secured interest
in Jones’ home that is not relevant to the issues raised in this appeal.

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Industry Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be
entered in any court having juri sdiction thereof.” The contract specified that in the event
of arbitration or litigation, the “prevailing party” was to be awarded attorney fees.
B&K provided, without prior written agr eement, $17,458.58 of services for the
home beyond the fixed amount of $80,000. J ones paid B&K the $80,000 but refused to
pay the additional amount and B&K obtained a mechanic’s lien and filed a civil complaint
in district court against Jones to foreclose the lien. Jones brought counterclaims alleging
slander of title, civil conversion, punitive damages, and fraud, and invoked the arbitration
clause of the contract. The parties stipulated to an order, which the judge signed, staying
litigation pending arbitration of “all proceedings.”
Following an arbitration he aring that spanned five days, the arbitrator awarded
$17,458.58 to B&K for extra services provid ed and $26,550.00 to Jones for her claims
“related to repairs/further work.” The arb itrator also determined that there was no
“prevailing party” and declined to award attorney fees.
Jones moved the district court to vacate the arbitration award, claiming that the
arbitrator exceeded its authority by “refus[ing] to follow the contract.”
The district court issued an order confir ming the arbitrator’s award to Jones but
vacating the award to B&K on the ground that the arbitrator exceeded the authority granted
by the parties’ contract. The district court determined that Jones was the prevailing party
and awarded her $153,542.67 in attorney fees. B&K appeals.

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DECISION
Minnesota Statutes section 572B.23(a) (2018) provides six bases upon which a
district court may vacate an arbitration awar d. The basis raised by Jones is that the
arbitrator “exceeded the arbitr ator’s powers.” Minn. Stat. § 572B.23(a)(4). Appellate
courts review the scope of an arbitrator’s authority de novo. Seagate Tech., LLC v. W. Dig.
Corp., 854 N.W.2d 750, 760 (Minn. 2014). In determining whether the arbitrator exceeded
its authority, our court reviews only whether the arbitrator considered matters that were not
properly before it. See Liberty Mut. Ins. Co. v. Sankey, 605 N.W.2d 411, 414 (Minn. App.
2000) (“[T]he only issu e before us is whether the ques tion decided by the arbitrator was
within his authority to decide; we may not examine the underlying evidence and record, or
otherwise delve into the merits of the award.”), review denied (Minn. Apr. 18, 2000).
The supreme court has clarified the arbitrat or’s role as follows : “The scope of an
arbitrator’s authority is a matter of contract interpretation to be determined from a reading
of the parties’ arbitration agreement.” Seagate, 854 N.W.2d at 761 (quotation omitted).
We therefore look to the language of the par ties’ agreement to determine the scope of the
arbitrator’s authority. Id. “Where . . . a case is submitted to arbitration by order of a court,
the scope of the issues submitted is controlled by the court’s order” and “anything in the
order, or included in a stipulation of the parties, will be before the arbitrator.” Latenser v.
John Latenser & Sons, Inc., 347 N.W.2d 486, 490 (Minn. 1984). Moreover, the supreme
court had stated:
[A]n arbitrator, in the absence of an agreement limiting his
authority, is the final judge of both law and fact, including the
interpretation of the terms of a ny contract, and his award will

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not be reviewed or set aside for mistake of either law or fact in
the absence of fraud, mistake in applying his own theory,
misconduct, or other disregard of duty.

State, Office of State Auditor v. Minn. Ass’n of Prof’l Emps., 504 N.W.2d 751, 754 (Minn.
1993) (quotation omitted).
Jones claims the arbitrator exceeded its authority by considering issues beyond
breach of contract. We disagree. The parties’ stipulation, as reflected in the court’s order,
clearly granted authority to the arbitrator to decide “all proceedings.” Because the
arbitrator’s award was premised on issues subject to arbitration, and because we discern no
applicable basis upon which to set aside the award, the arbitrator’s award was not subject
to de novo review by the district court and should be reinstated. Id.
Jones also argues, and the district court agreed, that the arb itrator exceeded its
authority by determining that neither party was the prevailing party and, thus, awarding no
attorney fees. Jones argues that the contract entitles her to attorney fees as the prevailing
party. We have determined that a contractua l provision providing for attorney fees to the
prevailing party is, absent an agreement by the parties to the contrary, subject to arbitration.
See Morrison v. Northern States Power Co. , 491 N.W.2d 675, 678 (Minn. App. 1992)
(“[C]osts and attorney fees are subject to arbitration whether arbitrability is determined by
the court order or by the [parties’] agreement.”), review denied (Minn. Jan. 15, 1993). The
issue of attorney fees for th e prevailing party was subject to arbitration because it was
included in the contract. Therefore, the arb itrator’s attorney-fees decision was also not
subject to de novo review by either the district court or our court and must be reinstated.

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In sum, because the arbitrat or acted within his authority in addressing the parties’
claims, we reverse the district court’s order and remand for reinstatement of the arbitrator’s
award.
Reversed and remanded.