A Wisconsin appellate court upheld an arbitration award between a lessor and lessee, despite a host of objections from the lessee, and warned the lessee that vigorous advocacy is not inconsistent with civility, as contemplated by the rules of appellate procedure and professional conduct.

In Tri-County Investments, LLC v. Toney Law Offices, S.C., No. 2007AP195, 2008 WL 426233 (Wis. Ct. App. Feb. 19, 2008), Toney entered into a five-year lease with Tri-County for an office space. After certain remodeling efforts failed due to the existing structural design of the office, Toney declared the lease rescinded.

Tri-County did not consider the structural design to be a material breach of the lease, and sought arbitration pursuant to the arbitration agreement in the lease. An arbitrator, requested by Tri-County, telephoned Toney to inform him of Tri-County's request to arbitrate. Toney agreed to arbitrate.

The arbitrator concluded that Tri-County did not materially breach the lease, and assessed damages against Toney for his rescinding of the lease and one-half of the arbitration fees. Toney filed a motion to vacate the arbitration award on various grounds.

The lower court rejected Toney's arguments and confirmed the arbitrator's award. On appeal, Toney argued that the arbitrator exceeded his powers by arbitrating without Toney's consent. The Court rejected this argument and determined that the arbitrator did not exceed his powers.

Toney contended that the arbitration agreement required a written request for arbitration by one of the parties. However, in a signed affidavit, Toney admitted that he agreed to arbitrate the dispute during a telephone call with the arbitrator. Therefore, Toney waived any procedural deficiency that could be assumed with regard to a written request for arbitration.

Toney also argued that the arbitrator lacked jurisdiction to decide whether the parties agreed to rescind the lease, and that only the courts may decide this issue. The Court noted that when a specific arbitration agreement states, "all legal disputes shall be arbitrated," this phrase would include a dispute over whether the lease itself was rescinded.

The Court rejected Toney's other arguments that the arbitrator erroneously exercised his discretion, that the arbitrator was biased, and that the arbitrator committed misconduct. The Court further noted that it was troubled by the tone and lack of professionalism in Toney's briefs.

In affirming the arbitration award, the Court noted, "a cardinal rule of appellate practice is to avoid disparaging the court system. We do not consider an arbitrator outside the ambit of that rule." The Court stated that vigorous advocacy is not inconsistent with the requirement of civility, as contemplated by the rules of appellate procedure and the rules of professional conduct.