Nerium Biotechnology, Inc. and Nerium Skincare, Inc. v. Neora, LLC F/K/A Nerium International, LLC, Jeff Olson, and JO Products, LLC ( 2023 )


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  • AFFIRMED and Opinion Filed February 7, 2023
    S  In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-22-00234-CV
    NERIUM BIOTECHNOLOGY, INC. AND NERIUM SKINCARE, INC.,
    Appellants
    V.
    NEORA, LLC F/K/A NERIUM INTERNATIONAL, LLC, JEFF OLSON,
    AND JO PRODUCTS, LLC, Appellees
    On Appeal from the 101st Judicial District Court
    Dallas County, Texas
    Trial Court Cause No. DC-21-17485
    MEMORANDUM OPINION
    Before Justices Carlyle, Garcia, and Miskel
    Opinion by Justice Garcia
    Nerium Biotechnology and Nerium Skincare, Inc. (together, “Biotech”)
    appeal from the trial court’s judgment confirming an arbitration award and denying
    their motion to vacate. In two issues, Biotech argues the arbitrator exceeded the
    scope of his authority by (i) deciding claims outside the scope of the parties’
    agreement because putative notice and cure provisions precedent to arbitration were
    not met, and (ii) manifestly disregarding Texas law regarding the evidence necessary
    to support the damage award. Concluding there is no reversible error, we affirm the
    trial court’s judgment.
    I. BACKGROUND
    The disputes underlying the substantive claims in arbitration are well known
    to the parties. Accordingly, we focus only on the facts pertinent to our analysis.
    Following years of litigation, Biotech entered a settlement agreement with
    Nerium International, Jeff Olson, Jo Products, LLC, (collectively, “Neora”) and a
    third party. The parties also executed an intellectual property agreement.
    The settlement agreement (the “Agreement”) included a Texas choice of law
    provision and an arbitration clause providing for arbitration before the American
    Arbitration Association (“AAA”). Specifically, the parties agreed to “binding
    arbitration” by the AAA in Dallas pursuant to the AAA Commercial Arbitration
    Rules as “the exclusive remedy for any and all disputes, claims, or controversies . .
    . arising under or relating to the [Agreement].”
    Neora subsequently initiated an AAA arbitration proceeding against Biotech
    alleging, inter alia, claims for breach of the Agreement. This case, styled Neora,
    LLC f/k/a Nerium International, LLC v. Nerium Biotechnology, Inc. and Nerium
    Skincare, Inc. (the “Main Case”) was arbitrated with a related case styled Nerium
    Skincare, Inc. v. Jeff Olson and Jo Products, LLC (the “Guarantee Case”). The
    arbitrator issued a separate award for each case.
    –2–
    Neora initiated this suit seeking confirmation of the awards. Biotech moved
    to vacate certain paragraphs of the Main Case award.1 The trial court denied the
    motion to vacate and confirmed the final award. After severing the remaining claims,
    the trial court entered final judgment confirming the award and awarding Neora its
    attorney’s fees, costs, and expenses. Biotech appeals from that judgment.
    II. ANALYSIS
    Standard of Review and Applicable Law
    We review a trial court’s decision to confirm or vacate an arbitration award
    under a de novo standard of review based on a review of the entire record.
    Centex/Vestal v. Friendship W. Baptist Church, 
    314 S.W.3d 677
    , 683 (Tex. App.—
    Dallas 2010, pet. denied). Judicial review of arbitration awards “adds expense and
    delay, thereby diminishing the benefits of arbitration as an efficient, economical
    system for resolving disputes.” GJR Mgmt. Holdings, L.P. v. Jack Raus, Ltd., 
    126 S.W.3d 257
    , 263 (Tex. App.—San Antonio 2003, pet. denied). Therefore, review of
    arbitration awards is very narrow. See Hoskins v. Hoskins, 
    497 S.W.3d 490
    , 494
    (Tex. 2016).
    Arbitration awards have the same effect as a judgment of last resort and,
    consistent with the deferential and narrow scope of review, we indulge every
    reasonable presumption in favor of the award and none against it. See CVN Grp.,
    1
    Likewise, on appeal, Biotech’s arguments pertain only to the award in the Main Case. Our review is
    therefore limited to that award.
    –3–
    Inc. v. Delgado, 
    95 S.W.3d 234
    , 238 (Tex. 2002). Deference by the courts is required
    “lest disappointed litigants seek to overturn every unfavorable arbitration award in
    court.” See Crossmark, Inc. v. Hazar, 
    124 S.W.3d 422
    , 429 (Tex. App.—Dallas
    2004, pet. denied).
    A non-prevailing party seeking to vacate an arbitration award bears the burden
    in the trial court of bringing forth a complete record that establishes its basis for
    vacating the award. In re Chestnut Energy Partners, Inc., 
    300 S.W.3d 386
    , 401 (Tex.
    App.—Dallas 2009, pet. denied). “When there is no transcript of the arbitration
    hearing, the appellate court will presume the evidence was adequate to support the
    award.” 
    Id.
     (quoting Statewide Remodeling, Inc. v. Williams, 
    244 S.W.3d 566
    , 568
    (Tex. App.—Dallas 2008, no pet.)).
    The Agreement does not specify whether it is governed by the Federal
    Arbitration Act (“FAA”) or the Texas Arbitration Act (“TAA”). The FAA applies
    to “all suits in state and federal court when the dispute concerns a contract
    evidencing a transaction involving [interstate] commerce.” Jack B. Anglin Co., Inc.
    v. Tipps, 
    842 S.W.2d 266
    , 269–70 (Tex. 1992). But when, as here, the underlying
    contract specifies that it is governed by Texas law, both statutes apply. Barantas Inc.
    v. Enter. Fin. Grp., Inc., No. 05-17-00896-CV, 
    2018 WL 3738089
    , at *5 (Tex.
    App.—Dallas Aug. 7, 2018, no pet.) (mem. op.). “When both acts apply, the FAA
    preempts the TAA only if the TAA is inconsistent with the FAA or affects the
    enforceability of the contract.” 
    Id.
     In this instance, we need not determine which act
    –4–
    applies because our conclusion would be the same under either act. Cambridge
    Legacy Grp., Inc. v. Jain, 
    407 S.W.3d 443
    , 448 (Tex. App.—Dallas 2013, pet.
    denied).
    Failure to Consider Conditions Precedent
    During the arbitration, Biotech requested leave to file a dispositive motion
    alleging that Neora failed to satisfy certain conditions precedent to arbitration;
    specifically, that notices sent pursuant to paragraph twelve of the Agreement were
    deficient or defective. The arbitrator denied leave, ruling that “the best course is for
    me to resolve Biotech’s notice and cure defenses along with the many other claims
    and defenses . . . following the final hearing.”
    Biotech now argues the arbitrator exceeded his authority by adjudicating
    claims before the conditions precedent to arbitration were satisfied. According to
    Biotech, the arbitrator failed to consider its contractual notice and cure defenses.
    The Agreement is governed by the AAA Commercial Arbitration Rules. AAA
    Commercial Rule R-7(a) provides, “the arbitrator shall have the power to rule on his
    or her own jurisdiction including . . . the arbitrability of any claim or counterclaim.”
    See Am. Arbitration Ass’n, Commercial Arbitration Rules & Mediation Procedure
    R-7(a) (eff. Oct. 1, 2013). It is well-established that a bilateral agreement to arbitrate
    under the AAA rules “constitutes clear and unmistakable evidence of the parties’
    intent to delegate the issue of arbitrability to the arbitrator.” See Home Advisor, Inc.
    v. Waddell, No. 05-19-00669-CV, 
    2020 WL 2988565
    , at *5 (Tex. App.—Dallas
    –5–
    June 4, 2020, no pet.) (mem. op.). Where the parties’ contract clearly and
    unmistakably delegates the arbitrability question to the arbitrator, the court possesses
    no power to decide the arbitration issue. Robinson v. Homeowners Mgmt. Enters.,
    Inc., 
    590 S.W.3d 518
    , 532 (Tex. 2019).
    Biotech does not dispute that the arbitrator was charged with determining
    arbitrability in this case. Whether the conditions precedent to arbitration have been
    met is a question of arbitrability. See G.T. Leach Builders, LLC v. Sapphire V.P.,
    L.P., 
    458 S.W.3d 502
    , 520 (Tex. 2015) (distinguishing between procedural and
    substantive arbitrability and explaining that procedural arbitrability questions
    concern prerequisites and other conditions precedent to an obligation to arbitrate and
    are determined by the arbitrator); see also Myer v. AmericoLife, Inc., 
    232 S.W.3d 401
    , 409 (Tex. App.—Dallas 2007, no pet.) (procedural questions such as whether
    any contractually based prerequisites to arbitration have been satisfied, when
    intertwined with the underlying facts of the dispute, are left to the arbitrator). Once
    the arbitrator has determined that prerequisites have been met, we are not permitted
    to review the decision on the merits, even if the decision is alleged to be based on
    factual error or a misinterpretation of the parties’ agreement. Myer, 
    232 S.W.3d at 408
    .
    Further, although Biotech asserts the arbitrator did not consider its notice and
    cure defenses, it devotes considerable argument to the merits of those defenses. But
    we may not vacate an arbitration award even if it is based upon a mistake of law or
    –6–
    fact. Ancor Holdings, LLC v. Peterson, Goldman, Villani, Inc., 
    294 S.W.3d 818
    , 826
    (Tex. App.—Dallas 2009, no pet.). The arbitrator’s contractual interpretation is not
    within the scope of our review. See Petrobas Am., Inc. v. Astra Trading NV, No. 01-
    11-00073, 
    2012 WL 1068311
    , at *17 (Tex. App.—Houston [1st Dist.] Mar. 29,
    2012, no pet.) (mem. op.). Arbitrators exceed their power when they lack the
    authority to decide the adjudicated issue. Ctr. Rose Partners, Ltd. v. Bailey, 
    587 S.W.3d 514
    , 527–28 (Tex. App.—Houston [14th Dist.] 2019, no pet) (considering
    TAA); Denbury v. Onshore LLC v. Texcal Energy S. Tex., L.P., 
    513 S.W.3d 511
    ,
    520 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (misinterpreting contract or
    misapplying law not a basis for vacatur under TAA or FAA). Arbitrators do not
    exceed their authority by erroneously deciding an issue. Bailey, 587 S.W.3d at 527–
    28. The arbitrator had the authority to determine the issue here.
    Moreover, we have no record of the arbitration proceedings. Thus, even if the
    question was one within the scope of our review, we assume the evidence supports
    the award. Statewide Remodeling, 244 S.W.3d at 568. Without a transcript, we
    cannot determine what the parties asked the arbitrator to decide, or whether and to
    what extent the arbitrator considered Biotech’s notice and cure defenses. See NAFTA
    Traders, Inc. v. Quinn, 
    339 S.W.3d 84
    , 101–02 (Tex. 2011) (absence of complete
    record precludes determination of basis for award). Indeed, the absence of a
    transcript is fatal to Biotech’s claim that the arbitrator exceeded his authority by
    failing to consider its defenses, and in adjudicating the parties’ claims and issuing
    –7–
    the award. See id.; Kline v. O-Quinn, 
    874 S.W.2d 776
    , 783 (Tex. App.—Houston
    [14th Dist.] 1994, writ denied) (without record of proceedings court unable to
    determine what claims were submitted or what evidence was offered).
    We resolve Biotech’s first issue against it.
    Manifest Disregard for the Law
    Biotech also argues that the arbitrator exceeded his authority by manifestly
    disregarding applicable law. Specifically, Biotech maintains that the damage award
    has no basis in law or fact and gives Neora an improper windfall.
    An arbitrator does not exceed his power by making a mistake of law of fact.
    Ancor Holdings, 
    294 S.W.3d at 830
    . And we may not vacate an arbitration award
    for errors in interpretation, application of the law or facts, or even manifest disregard
    for the law. See Hoskins, 497 S.W.3d at 494.
    As we have noted, there is no record of the arbitration proceedings. Biotech
    insists we have an adequate record to make the determinations it seeks because the
    arbitrator’s thirty-seven-page award is detailed and refers to specific cases and
    evidence. But Biotech provides no authority, nor are we aware of any, providing for
    court review of arbitration based on an arbitration award in lieu of a full record.
    Without a full record, we are unable to determine the basis for the award. See NAFTA
    Traders, 339 S.W.3d at 101–102.
    Biotech’s second issue is resolved against it.
    –8–
    III.   Conclusion
    Having resolved all of Biotech’s issues against it, we affirm the trial court’s
    judgment.
    /Dennise Garcia/
    DENNISE GARCIA
    JUSTICE
    220234F.P05
    –9–
    S
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    NERIUM BIOTECHNOLOGY,                          On Appeal from the 101st Judicial
    INC. AND NERIUM SKINCARE,                      District Court, Dallas County, Texas
    INC., Appellants                               Trial Court Cause No. DC-21-17485.
    Opinion delivered by Justice Garcia.
    No. 05-22-00234-CV           V.                Justices Carlyle and Miskel
    participating.
    NEORA, LLC F/K/A NERIUM
    INTERNATIONAL, LLC, JEFF
    OLSON, AND JO PRODUCTS,
    LLC, Appellees
    In accordance with this Court’s opinion of this date, the judgment of the trial
    court is AFFIRMED.
    It is ORDERED that appellee NEORA, LLC F/K/A NERIUM
    INTERNATIONAL, LLC, JEFF OLSON, AND JO PRODUCTS, LLC recover
    their costs of this appeal from appellant NERIUM BIOTECHNOLOGY, INC.
    AND NERIUM SKINCARE, INC..
    Judgment entered February 7, 2023
    –10–