Frei asks this court to modify a decision by a commissioner
of this court concluding that he does not have an immediate
right to appeal superior court orders that recused one
arbitrator and appointed another. Because Frei may not appeal
these orders as of right, we deny the motion to modify.
5, 2018, Maria Colacurcio sued her ex-husband, Brent Frei.
She claimed that during the mediation of their marriage
dissolution case, Frei committed securities fraud, breach of
fiduciary duties, and other misconduct by failing to disclose
important financial information. The mediation produced a
settlement agreement that included an arbitration provision:
Williams . . .; or another agreed upon arbitrator (if the
parties cannot agree, two of the above named arbitrator[ ]s
will decide upon a person to act) if none of the above are
available to act.
asked the court to decide that her claims were not subject to
this arbitration provision. Frei asked the court to compel
arbitration. The trial court granted Frei's request and
ordered arbitration before Dan Williams, who had served as
their mediator, "or another agreed upon arbitrator in
compliance with the parties' CR 2A Agreement."
Neither party appealed the order. Arbitration began before
months into arbitration, during a March 2019 deposition, Frei
said that during the mediation he disclosed to Williams
information that Colacurcio claimed Frei withheld from her.
After the deposition, Colacurcio's counsel sent a letter
to Williams, raising the concern that Frei's statements
made Williams a material witness and undermined his ability
to serve as arbitrator. Frei's counsel sent Williams a
letter denying Williams's importance as a witness and
describing Williams as "the appropriate person to
arbitrate this dispute." Williams then suspended his
involvement in the arbitration "absent further agreement
or court order."
asked Frei to agree to proposed conditions under which
Williams could continue as arbitrator, to stipulate to a new
arbitrator, or to provide the names of acceptable
replacements. Frei responded by asking the trial court
"to enforce [the] parties' CR 2A agreement" and
rule that Williams should continue as arbitrator. In his
request, he described the issue before the court as,
"Should the Court enforce the parties' CR 2A
agreement and retain Dan Williams as Arbitrator?" He
asserted that recusal was not appropriate given the
circumstances and Washington law and that Colacurcio's
request would prejudice him improperly.
same day Colacurcio asked the court to disqualify Williams
and appoint a new arbitrator. She suggested Judge Palmer
Robinson (retired), Judge Paris Kallas (retired), or attorney
James Smith. Frei replied that it was premature to consider
replacement arbitrators and asked the court to maintain
Williams. He also rejected the three arbitrators Colacurcio
suggested and named two attorneys, Larry Besk and Teresa
trial court disqualified Williams. It found that Frei's
alleged ex parte communication with him was a central issue
in the arbitration. The court ordered James Smith to replace
Williams. If Smith was not available or was unwilling to
serve, it ordered Judge Palmer Robinson to replace Williams.
It concluded by stating that the court case remained
"stayed pending resolution of the parties'
asked the court to reconsider part of its decision,
contending that the parties had to agree to a replacement
arbitrator. He also claimed that the court should not appoint
Smith because Frei's counsel had consulted with Smith
earlier about the case. He stated that "[s]electing a
new arbitrator in accordance with [the] CR 2A Agreement's
mandated procedures will not be a futile exercise given that
Mr. Frei is prepared to agree to the appointment of Judge
trial court ruled that because of this communication, Smith
should not serve as arbitrator. It found "that the time
for mutually agreeing on an alternative [arbitrator] has
passed, in that the parties had the opportunity to agree, and
were unable to do so." It appointed Judge Robinson or,
alternatively, Judge Kallas.
filed a notice of appeal challenging the trial court orders
that disqualified Williams and appointed Robinson. Colacurcio
moved to dismiss the appeal, asserting that the orders were
not appealable and the court should not grant discretionary
review. A commissioner of this court ruled that
the challenged orders were not immediately appealable.
filed a motion to modify the commissioner's ruling and
asked this court to stay the arbitration until we resolved
the issue of who would be the arbitrator. A commissioner
stayed the arbitration and ordered that any note for a
hearing on a motion for discretionary review would be due 10
days after this court's decision on the motion to modify.
contends that RAP 2.2(a)(3) and RCW 7.04A.280(1)(a) provide
him with an immediate right to appeal the trial court's
orders removing Williams as arbitrator and appointing a new
arbitrator. We disagree.
court reviews a motion to modify a commissioner's ruling
de novo.RAP 2.2 identifies the decisions that a
party may appeal as a matter of right. RAP 2.3 provides a
procedure for requesting discretionary appellate review of a
superior court decision not appealable as a matter of right.
This rule also describes the considerations governing
acceptance of discretionary review. Frei has not filed a