This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Walter R. Fields,
Maslon Edelman Borman & Brand, LLP, et al.,
Walter R. Fields,
Maslon Edelman Borman & Brand, LLP,
Maslon Edelman Borman & Brand, LLP,
Walter R. Fields,
Filed January 14, 2003
Hennepin County District Court
File Nos. MP0106460, MPCT0200394, MPCT0200942
Walter R. Fields, 1521 Waverly Place, Minneapolis, MN 55403 (pro se appellant)
David F. Herr, James F. Killian, Kai H. Richter, Maslon Edelman Borman & Brand, LLP, 3300 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402-4140 (for respondents)
Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court’s refusal to vacate an arbitration award in this legal-malpractice action. We affirm.
In December 1997, appellant Walter R. Fields hired respondent Maslon Edelman Borman & Brand (“Maslon”) to represent him in claims arising from a dispute with a builder over the construction of Fields’s house. In December 1997, Fields signed a retainer agreement that contained the following term:
In the very unlikely event that any dispute arises between you [(i.e., Fields)] and Maslon [ ] in our representation of you which we are not able to amicably resolve, including without limitation any dispute about the quality or nature of our services or our fees or disbursements which we bill you, it is mutually agreed that we will resolve that dispute by binding arbitration before a panel of three arbitrators pursuant to the Commercial Arbitration Rules of the American Arbitration Association, in Minneapolis, Minnesota.
Fields was dissatisfied with Maslon’s handling of his case. He claims that Maslon attorneys misrepresented to him whether they had arranged for testing of a mold sample to prove that the builder was liable for a mold infestation in Fields’s house. The mold sample was apparently tested, but Fields maintains that Maslon failed to disclose the results of the testing before the deadline for completion of discovery, causing the district court to rule that Fields could not include a claim for damages resulting from the mold infestation.
The balance of Fields’s claim against the builder was later submitted to arbitration, but Fields was dissatisfied with the award. Fields asserts that because of “the court-ordered restriction on the number and type of claims [he] could bring, the arbitration was not as successful as it should have been.”
In May 2001, Fields filed a claim in the district court for legal malpractice against Maslon and three of its attorneys who worked on his case. Maslon in turn sought arbitration of its claim against Fields for the value of the services it provided to Fields that remained unpaid. In July 2001, the district court, relying on the arbitration clause in the retainer agreement, dismissed Fields’s complaint without prejudice and granted Maslon’s motion to compel arbitration of Fields’s malpractice claim. A panel of three arbitrators then proceeded to decide both parties’ claims.
The panel granted Maslon’s motion for summary judgment on the malpractice claim on the ground that the claim required expert testimony by an attorney to establish the standard of care, but Fields had not identified and did not intend to present an attorney expert witness. The panel eventually awarded Maslon $81,370.87, the remaining balance of the legal fees incurred in its representation of Fields. Fields and Maslon filed motions in the district court to vacate and confirm the award, respectively. The district court confirmed the award and denied the motion to vacate. Fields now seeks appellate review of (1) the district court’s order dismissing his claim and compelling arbitration and (2) the district court’s confirmation of and refusal to vacate the arbitration award.
D E C I S I O N
Fields challenges the district court’s order dismissing his complaint without prejudice and compelling arbitration of his malpractice claim. Maslon argues that Fields’s appeal from this order is untimely.
A. Timeliness of Appeal
The district court issued its order dismissing Fields’s complaint without prejudice and compelling arbitration of Fields’s claim in July 2001. Fields did not attempt to appeal from this order, and Maslon claims that Fields thereby waived appellate review of the order. But an order dismissing a claim without prejudice and compelling arbitration is not appealable. Fedie v. Mid-Century Ins. Co., 631 N.W.2d 815, 818-19 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001). Thus, Fields did not waive his right to appeal from the order.
Maslon also argues that this issue is not properly before this court because Fields did not specify the July 2001 order in his notice of appeal as an order from which he was appealing. Maslon correctly observes that a notice of appeal must specify the judgment or order from which the appeal is taken. Minn. R. Civ. App. P. 103.01, subd. 1(a). But notices of appeal “are to be liberally construed in favor of their sufficiency.” Kelly v. Kelly, 371 N.W.2d 193, 195 (Minn. 1985) (citation omitted). Courts also have a duty to allow reasonable accommodation to pro se litigants so long as no prejudice results. Kasson State Bank v. Haugen, 410 N.W.2d 392, 395 (Minn. App. 1987).
Fields did not order a transcript of the hearing that preceded the district court’s July 2001 order, and Maslon argues that it would be prejudiced by any appeal with an incomplete record. Although Maslon correctly observes that this court cannot review findings of fact where no transcript has been ordered, e.g., Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987), no transcript is necessary to evaluate the legal question of whether the malpractice claim was arbitrable. Thus, Maslon is not prejudiced by consideration of this issue, and we address it despite Fields’s omission.
Fields argues that the district court erred in dismissing his complaint without prejudice and compelling arbitration of his malpractice claim. This court reviews de novo a determination of arbitrability. Indep. Sch. Dist. No. 88 v. Sch. Serv. Employees Union Local 284, 503 N.W.2d 104, 106 (Minn. 1993).
An arbitration agreement in a contract is “valid, enforceable, and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Minn. Stat. § 572.08 (2002). “On application of a party showing an [arbitration] agreement * * * and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration * * *.” Id. § 572.09(a) (2002).
The retainer agreement between Fields and Maslon unambiguously states that “any dispute” will be resolved by arbitration. But Fields contends that the arbitration clause is not enforceable because the retainer agreement was a contract of adhesion. Contracts of adhesion are the result of unequal bargaining power between the parties. Hauenstein & Bermeister, Inc. v. Met-Fab Indus., Inc., 320 N.W.2d 886, 891 (Minn. 1982). As a result, they are also described as “take-it-or-leave-it” contracts. Id. The use of boilerplate language contained in a printed form is common in such agreements, but this characteristic alone does not create a contract of adhesion. Id. In determining whether an agreement is a contract of adhesion, a court must consider (1) the relative bargaining power of the parties, (2) the opportunity for negotiation, (3) the availability of the service for which the parties contracted, (4) whether the service was a public necessity, and (5) the relative sophistication of the parties. Interfund Corp. v. O’Byrne, 462 N.W.2d 86, 89 (Minn. App. 1990).
We are not persuaded that the retainer agreement, with its arbitration clause, is a contract of adhesion. Fields has not established that he had no choice but to hire Maslon to represent him, and the record does not suggest that the retainer agreement between the parties was anything but an arm’s-length business transaction. Therefore, we conclude that the district court did not err by compelling arbitration of Fields’s claim.
Fields also challenges the district court’s confirmation of and refusal to vacate the arbitration award. An appeal from an arbitration decision is subject to limited review, and courts will exercise every reasonable presumption in favor of the arbitration award’s finality and validity. State, Office of State Auditor v. Minn. Ass’n of Prof’l Employees, 504 N.W.2d 751, 754 (Minn. 1993).
An arbitration award may be vacated only on the grounds listed in Minn. Stat. § 572.19, subd. 1 (2002). Hunter, Keith Indus., Inc. v. Piper Capital Mgmt. Inc., 575 N.W.2d 850, 854 (Minn. App. 1998). Fields does not assert that any of the grounds in section 572.19, subdivision 1, is present here. Rather, he argues that Maslon acted in bad faith in representing him and for that reason Maslon should forfeit the value of its services. Although this is an argument that Fields could have made either in the district court or before the arbitration panel, it is not a basis authorized by section 572.19, subdivision 1, for vacating an award. Therefore, we will not disturb the district court’s order refusing to vacate the award.