WICKER v. BAYVIEW LOAN SERVICES LLC US (2021)

United States Court of Appeals, Tenth Circuit.2021-01-27No. No. 19-4169

Summary · law.co

Holding. The judgment of the district court dismissing Wicker's application to confirm the arbitration award is affirmed, and the court grants the defendants' motion for sanctions by awarding them double appellate costs.

James Wicker, proceeding without an attorney, sought to confirm an arbitration award against Bayview Loan Servicing and U.S. Bank worth nearly $2 million. Wicker claimed an arbitration agreement arose when the defendants failed to respond to what he characterized as a binding counteroffer. The district court dismissed the application, finding that no valid arbitration agreement existed because neither defendant had signed any agreement and that Wicker's legal theory—that silence constitutes contract formation—has no basis in contract law.

Wicker appealed, arguing that the arbitrator had authority to determine whether an arbitration agreement existed and that the district court overstepped by making that determination. The appellate court rejected this argument, establishing that courts—not arbitrators—must decide in the first instance whether the parties actually formed an arbitration agreement. The court also found Wicker's appeal frivolous because he failed to address the district court's reasoning or cite supporting legal authority for his position that nonresponse creates a binding contract.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether courts or arbitrators have authority to determine if an arbitration agreement was formed between parties
Whether a party's failure to respond to a counteroffer can create a binding arbitration agreement
Whether a pro se litigant's appeal can be deemed frivolous when inadequately briefed and legally meritless

Procedural posture

Wicker appealed the district court's sua sponte dismissal of his application to confirm an arbitration award, which the lower court had rejected for lack of a valid arbitration agreement.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

ORDER AND JUDGMENT *

James B. Wicker, appearing pro se, appeals the district courts order dismissing his application to confirm an arbitration award against Bayview Loan Servicing, LLC (Bayview) and U.S. Bank, N.A. (Bank). The court found that “the purported [arbitration] award is bogus because there was never an agreement to arbitrate, and ․ this action is therefore a farce.” R. at 93. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

The parties are familiar with the facts and we repeat them only briefly. When Bayview and the Bank failed to respond to Mr. Wickers “binding self-executing irrevocable [counteroffer],” R. at 58, which also contained scattered and incoherent mentions of arbitration, he proceeded to obtain a nearly $2 million arbitration award and then filed an application to confirm the award.

The district court, sua sponte,

entered an order dismissing Mr. Wickers application on the grounds that “[t]he supposed ‘arbitration agreement’ ” was never signed by either Bayview or the Bank. Id. at 93. The court rejected Mr. Wickers theory that an “ ‘agreement’ [to arbitrate] arose based on [Bayviews and the Banks] failure to respond to [the counteroffer],” id. (emphasis omitted), and determined that “[b]ecause arbitration is a matter of contract, and because the theory underlying the arbitration agreement put forward by Mr. Wicker here is unknown to the law of contracts, the purported award is an obvious sham and there can be no valid action based thereon.” Id. at 94 (footnotes and internal quotation marks omitted).

Mr. Wicker filed a motion to reconsider, which was denied by the district court. This appeal followed.

Mr. Wickers theory on appeal is that “[t]he Arbitrator determined there was a valid Arbitration Agreement within the Counter-Offer[,]” and “[t]he Court [therefore] usurped the arbitrators primary role in interpreting the Agreement when the Court stated there was no contract (Agreement) to arbitrate.” Aplt. Opening Br. at 16. Mr. Wicker is mistaken.

“The issue of whether an arbitration agreement was formed between the parties must always be decided by a court, regardless of whether the alleged agreement contained a delegation clause or whether one of the parties specifically challenged such a clause.” Fedor v. United Healthcare, Inc., 976 F.3d 1100, 1105 (10th Cir. 2020), (citing Granite Rock Co. v. Intl Bhd. of Teamsters, 561 U.S. 287, 297, 130 S.Ct. 2847, 177 L.Ed.2d 567 (2010)); Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 69 n.1, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995).

Not only does Mr. Wicker ignore caselaw that plainly establishes the courts authority to review whether the parties formed an agreement to arbitrate in the first instance, he fails to cite any authority that Bayviews and the Banks failure to respond to the counteroffer created a contract. Because Mr. Wicker has not addressed the grounds for the district courts dismissal as required under Federal Rule of Appellate Procedure 28(a)(8)(A), the issue is waived. “Although a pro se litigants pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers, this court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (brackets, citation and internal quotation marks omitted). Where, as here, issues “are not adequately briefed,” they “will be deemed waived.” Id. at 841 (internal quotation marks omitted).

III

We now turn to Bayviews and the Banks motion for sanctions under Fed. R. App. P. 38. Mr. Wickers pro se status does not shield him from the imposition of sanctions. See Van Sickle v. Holloway, 791 F.2d 1431, 1437 (10th Cir. 1986). Under Rule 38, “[i]f a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion ․ and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” “An appeal is frivolous when the result is obvious, or the appellants arguments of error are wholly without merit.” Braley v. Campbell, 832 F.2d 1504, 1510 (10th Cir. 1987) (rehearing en banc) (internal quotation marks omitted).

Mr. Wickers appeal is frivolous. He fails to acknowledge relevant legal precedent, much less distinguish it, and ignores the grounds on which the district court dismissed his application—his failure to establish a contract. As such, we award Bayview and the Bank double appellate costs. Pursuant to Fed. R. App. P. 39(d)(1), Bayview and the Bank must file within fourteen days an itemized and verified statement of their costs and proof of service with the clerk of this court.

The judgment of the district court is affirmed. We grant Bayviews and the Banks motion for sanctions to the extent of double costs. We deny Mr. Wickers motion to file a sur-reply.

FOOTNOTES

. We reject Mr. Wickers baseless argument that the district court was required to issue an order to show cause before entering its order dismissing the application.

Allison H. Eid, Circuit Judge