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Dolton v. Lynch

September 6, 2007

DAVID N. DOLTON ET AL., APPELLANTS,
v.
MERRILL LYNCH, PIERCE, FENNER & SMITH, INC. ET AL., APPELLEES.



Appeal from the Superior Court of the District of Columbia (CAB1076-05) (Hon. Patricia A. Broderick, Trial Judge).

The opinion of the court was delivered by: Kramer, Associate Judge

Submitted June 20, 2006

Before GLICKMAN, KRAMER and FISHER, Associate Judges.

David and Karen Dolton appeal from the trial court's order denying their application to vacate an arbitration award pursuant to D.C. Code §§ 16-4311, -4315 (2001). They argue that the award should be vacated because, by refusing to make credibility findings, the arbitration panel exceeded its power and demonstrated partiality. We affirm.

I.

This matter arises out of a claim filed by the appellants, David and Karen Dolton, with the National Association of Securities Dealers Dispute Resolution, Inc. ("NASD") alleging, inter alia, fraud, negligence, breach of fiduciary duty, and breach of contract. Specifically, the Doltons allege that they sought the services of the appellees "for the express and specific purpose of diversifying their theretofore self-directed equities portfolio out of the technology sector." The Doltons maintain that, despite their specific instructions, James King and William Fraley, their financial advisors at Merrill Lynch, failed to diversify their portfolio as they had requested, and that the Merrill Lynch management failed to properly supervise King and Fraley. As a result, the Doltons contend that their portfolio lost over $294,000 because of a decline in the technology sector.

Following a several-day hearing before a three-member arbitration panel, the NASD denied the Doltons' claim. In its written decision ("Award"), the panel expressly declined to make findings with respect to the credibility of the witnesses for either side. Instead, it wrote:

With regards to Claimant's claims against King and Fraley, the testimony of the Claimants and the individual Respondents was flatly contradictory. Although Claimants corroborated each other's testimony and King and Fraley generally corroborated each other, there was no corroboration of any testimony by a disinterested witness. Moreover, the Panel notes the remarkable absence of documentary evidence to corroborate either side's version of the central events of their 2000-2001 relationship. Counsel for both parties correctly acknowledged that the testimony of the Claimants and the individual Respondents could not be reconciled.

Thus, without deciding the evident credibility issues, the panel found that "Claimants failed to take appropriate and clear action to direct a change to their holdings." It further found that "even if Claimants were dissatisfied with the performance of King and Fraley, there is no evidence that they brought their alleged dissatisfaction to the attention of Merrill Lynch managers." Therefore, the panel concluded "that Claimants ratified the actions of the Respondents, and their claims therefore fail."

The Doltons timely filed an application to vacate the NASD's Award in the Superior Court. Their fundamental argument in the trial court, as it is here, was that the panel could not conclude that the Doltons had ratified the actions of their financial advisors without making credibility determinations because the Doltons testified that they had repeatedly complained to those advisors about their failure to diversify the Doltons' holdings. The Doltons maintain that, in taking this approach, the arbitration panel exceeded its powers, in violation of D.C. Code § 16-4311 (a)(3), and demonstrated "evident partiality," in violation of D.C. Code § 16-4311 (a)(2), by manifestly disregarding the law, acting arbitrarily and capriciously, or making a "gross mistake." They have not, however, provided us with a transcript of the arbitration hearing and there is no dispute that the transcript could have been produced.*fn1

II.

"We review de novo a trial court's judgment confirming an arbitration award." Laszlo N. Tauber, M.D. & Assocs. v. Trammell Crow Real Estate Servs., Inc., 738 A.2d 1214, 1216 (D.C. 1999) (citing Grad v. Wetherholt Galleries, 660 A.2d 903, 905 (D.C. 1995)). While the applicable standard is de novo, "It is firmly established that '[j]udicial review of arbitration awards is limited.'" Shore v. Groom Law Group, 877 A.2d 86, 91 (D.C. 2005) (quoting Brandon v. Hines, 439 A.2d 496, 509 (D.C. 1981)). "[T]his court will not set aside an arbitration award for errors of either law or fact made by the arbitrator." Id. (citing Celtech, Inc. v. Broumand, 584 A.2d 1257, 1258 (D.C. 1991)). "With rare exceptions, an award will not be disturbed unless the arbitration panel is found to have ruled on matters beyond the scope of its authority . . . or unless it appears that the panel 'manifestly disregarded the law . . . .'" Id. (citing Lopata v. Coyne, 735 A.2d 931, 940 (D.C. 1999); Poire v. Kaplan, 491 A.2d 529, 533-34 (D.C. 1985)).

Because the grounds for vacating arbitration awards are substantially limited by statute, see D.C. Code § 16-4311 (2001), transcripts of the arbitration proceedings will not always be necessary for judicial review. Here, however, we are stymied in our review of the trial court's decision by the failure of the Doltons to provide a transcript of the three-day arbitration hearing. Instead, despite there being no dispute that a transcript could have been prepared, the Doltons have supplied only the Award and a four-page affidavit from Mrs. Dolton -- based on her being present during the arbitration hearing -- describing the evidence that both parties submitted to the panel. The defendants refer to Mrs. Dolton's affidavit as "set[ting] forth a limited and self-serving description of the evidence." The Doltons respond that the affidavit is not "inaccurate or misleading."

The existence of this factual dispute in and of itself demonstrates that a transcript is necessary to resolve the issues raised. Appellate courts cannot simply review summaries of testimony, particularly when they are being called upon to make determinations about whether or not the finder of fact acted properly. In this case, we have little more than would ...


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