may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State Farm Insurance Company,
Filed July 6, 1999
Scott County District Court
File No. C9-88-484
William M. Hart, R. Gregory Stephens, Jenneane L. Jansen, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for appellant)
Mark A. Karney, Karney & Theiler, Hennepin Square Building, Suite 420, 2021 East Hennepin Avenue, Minneapolis, MN 55413 (for respondent)
Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Norton, Judge.
Appellant challenges the confirmation of an arbitrator's award as ex parte. We conclude that an ex parte confirmation is not permissible and reverse.
Respondent answers that he sought confirmation pursuant to Minn. Stat. § 572.19, subd. 4, which requires only that, "[i]f the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award."
We conclude that appellant is correct. Minn. Stat. § 572.18 (1998) requires that "[u]pon application of a party, the court shall confirm an award * * * ." It does not provide an exception where a court has refused to vacate an award under Minn. Stat. § 572.19, subd. 4. And Minn. Stat. § 572.23 requires that such an application shall be "by motion and shall be heard in the manner * * * for the making and hearing of motions." It too allows no exceptions where Minn. Stat. § 572.19, subd. 4, is concerned, and the word "shall" indicates the act to be performed is mandatory. Minn. Stat. § 645.44, subd. 16 (1998). Furthermore, Minn. R. Civ. P. 5.01 requires that every written motion be served on all parties.
There is no exception that would allow an ex parte confirmation of an arbitrator's award, and we must give effect to Minn. Stat. § 572.23. See Minn. Stat. § 645.16 (1998) ("Every law shall be construed, if possible, to give effect to all its provisions."). We conclude that respondent should not have applied ex parte for confirmation of the arbitrator's award, and we reverse. Because we determine that the initial issue of whether the confirmation ex parte was improper, we do not address the validity of the arbitrator's award or the district court's decision not to vacate it.
[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.