2016 Parkview Condominiums Development, LLC v. Lawrence E. Marshall ( 2024 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00221-CV
___________________________
2016 PARKVIEW CONDOMINIUMS DEVELOPMENT, LLC, Appellant and
Appellee
V.
LAWRENCE E. MARSHALL, Appellee and Appellant
On Appeal from the 153rd District Court
Tarrant County, Texas
Trial Court No. 153-338058-22
Before Birdwell, Bassel, and Walker, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
Appellant 2016 Parkview Condominiums Development, LLC (Parkview)
appeals an order confirming an arbitration award in favor of Appellee Lawrence E.
Marshall. The arbitrator determined that Marshall was entitled to the return of a
$183,750 earnest money deposit that he had made under the terms of a contract to
purchase a condominium because Parkview had been unable to close on the sale by
the date specified in the contract.
Parkview moved to vacate the award by claiming that the arbitrator had
exceeded her powers in awarding Marshall attorney’s fees and costs. Parkview also
claimed that the arbitrator had harbored evident partiality because she had a bias—
which she revealed during the arbitration hearing—that had been created by a
negative personal experience after she attempted to purchase a condominium.
Parkview predicates its two issues on appeal on the two grounds that it raised to
vacate the award. Marshall perfected his own appeal, raising a single issue contending
that the trial court erred by not awarding him the attorney’s fees that he had incurred
in opposing Parkview’s motion to vacate the award and in presenting his
corresponding motion to confirm it.
We overrule the issues raised by both parties. For a host of reasons, the
arbitrator did not exceed her powers by awarding fees to Marshall because the fee
issue was within the ambit of the matters that she was required to decide; our limited
2
powers to review an arbitration award foreclose us from second-guessing that
decision. Further, Parkview’s claim that the arbitrator harbored an evident partiality
also fails. The arbitrator’s disclosure showed nothing more than that she had been
interested in purchasing a condominium and had paid a deposit. When the
development for the condominium did not go forward, her deposit was returned, but
she remained interested in purchasing a condominium in the development. What
triggered her disclosure was hearing the name of a person whom the arbitrator had
dealt with about her potential purchase and who was also referenced as a person
whom Marshall had spoken with about his purchase. Parkview’s efforts to spin this
routine occurrence into a fact that would give an objective observer pause about the
arbitrator’s objectivity misses the mark. Further, Parkview’s counsel stated at the time
of the arbitrator’s disclosure that Parkview had no objection to the arbitrator’s
continued service. Though Parkview now argues that was not a waiver, we hold that
it was.
Marshall’s issue challenging the trial court’s denial of his claim for attorney’s
fees is equally unavailing. The trial court operated within its discretion by denying the
request. Though the arbitrator tried to transfer to the trial court her power to decide
a fee issue, the contract provisions that Marshall cites do not authorize that hand off
or make the fee issue one for the trial court. Further, in view of the arbitrator’s fee
award, it was within the trial court’s discretion to decide that an additional fee award
was not warranted.
3
Accordingly, we affirm the order granting Marshall’s motion to confirm the
arbitration award.
II. Factual and Procedural Background
Marshall entered into a contract (the Contract) with Parkview to purchase a
condominium. The Contract contained a provision that freed Marshall from the
obligation to purchase the property should the closing fail to occur by November 1,
2019. This provision—Section 3.7—provides in full as follows:
Section 3.7 Failure to Close by November 1, 2019. If Closing fails to
occur by November 1, 2019, provided that Purchaser is not then in
default, Purchaser may terminate this Contract and shall be entitled to
the Earnest Money Deposit. In such event, the Title Company shall
immediately disburse the Earnest Money Deposit to Purchaser upon
written notice from the Purchaser to the Title Company. If the Seller
wrongfully interferes with the proper disbursement of the Earnest
Money Deposit, then Seller shall pay, upon the final order of the court
with appropriate jurisdiction stating that Purchaser is entitled to such
disbursement, all costs and reasonable attorneys’ fees incurred by
Purchaser in connection with its recovery thereof and both the costs and
reasonable attorneys’ fees of the Title Company. This Section 3.7 shall
survive the termination of this Contract.
Marshall made the earnest money deposit referenced in the quoted paragraph by
depositing $183,750 with the title company designated to act as escrow agent.
As the arbitration award (the Award) at issue described the controversies, the
November 1, 2019 deadline came and went, but Marshall did not terminate the
Contract; instead, he waited until November 2021—when Parkview indicated that it
was ready to close—to invoke Section 3.7. Parkview contended that Marshall had
waited too long to invoke the protections of Section 3.7 and was obligated to close.
4
Invoking the Contract’s arbitration clause, Marshall filed a claim with the American
Arbitration Association (AAA) seeking a declaration that he was not obligated to close
and was entitled to the return of the earnest money deposit. Parkview responded with
a counterclaim that Marshall was in breach of the Contract by failing to close in 2021.
An arbitrator was appointed to hear the parties’ claims. After appointment of
the original arbitrator, it was revealed that a member of his law firm was adverse to
Parkview’s counsel in another matter. Parkview objected to the original arbitrator’s
continued service. Apparently on the eve of the date that the arbitration was
scheduled to begin, AAA removed the original arbitrator. Another arbitrator was
appointed, and AAA sent the parties the new arbitrator’s potential conflict
disclosures; the record does not contain a copy of the disclosures. No objections
were made to the new arbitrator, and the arbitration proceeded.
During the arbitration, a person’s name was mentioned that triggered the
disclosure by the arbitrator that is the basis of Parkview’s claim of evident partiality.
A person named Nancy Holloway was mentioned by Marshall during the arbitration
hearing. Parkview’s counsel later described Holloway as “a participant in the
transaction between Mr. Marshall” and Parkview, without giving any further guidance
as to what that participation was. A transcript of the arbitration proceedings
documents what the arbitrator did when she heard Holloway’s name and the
disclosure that she then made:
5
THE ARBITRATOR: You know, I think I need to make a disclosure[,]
and I think I’ll need to call Dennis [Baird, manager of ADR services with
AAA] and tell him. I’ll make the disclosure now[,] and I’ll tell him.
[MARSHALL’S COUNSEL]: Sorry.
THE ARBITRATOR: I looked at a condo development in Dallas
several years ago at which Nancy Holloway was the person I worked
with. I have not -- the development did not happen. It was canceled.
But[,] I think[,] let me call Dennis. Let’s take a recess. Let me call
Dennis and tell him[,] and then we’ll go from there, okay?
[MARSHALL’S COUNSEL]: Do you want us to step out?
THE ARBITRATOR: No, I’ll step out. I mean, we’ll take a
break and hopefully, the day before the holiday weekend so hopefully
he’s in. All right.
....
THE ARBITRATOR: Hi Dennis, it’s [the arbitrator] and in the
room with me is our court reporter, Joe Hendrick, we’ve got
Mr. Chaiken, we’ve got his client’s representative Doug Hickok. We’ve
got Mr. Richmond, his client Mr. Marshall, Mr. Sigety and another
attorney with their firm, Ms. Samuel, and during the testimony a few
minutes ago, Mr. Marshall raised a name that I did not see on . . .
either . . . side’s conflicts checklist or in any pleadings and the name was
Nancy Holloway.
I disclosed and I am re-disclosing again that Ms. Holloway was
the representative of a condo developer in Dallas[,] and I believe she was
an outside employee, outside contracted person[,] but she was the
representative of that developer in a condo development in Dallas.
I had several meetings with her. I did -- I did not sign a contract
to purchase. I signed an indication of interest because the condo
development never got beyond indications of interest. I paid some
money. It became apparent that this condo development was never
going to -- or was not going to happen in [a] reasonable time[,] and I
think it was doing -- and it was all COVID related as well as some other
issues that I don’t even know and I got my $15,000 back.
6
I did speak to Ms. Holloway at some time that I don’t recall in the
last six to eight months to find out if they had -- were ever going to go
back and redevelop that and she told me something about -- there might
be -- seeing about announcing something in the fall of 2022. I have not
spoken to her since that time.
But anyway, it was not this development[,] and it was not this
developer. It was Rosewood[,] which is primarily a housing builder.
Anyway, that is the disclosure[,] and I am going to step out of the room.
Is that okay?
MR. BAIRD: Actually, before you step out, let me just ask
counsel real quick. Does either counsel have any questions for [the
arbitrator] based on that disclosure?
[MARSHALL’S COUNSEL]: No questions from claimant’s
counsel.
[PARKVIEW’S COUNSEL]: No questions from respondent’s
counsel.
MR. [BAIRD]: Okay. I would ask that [the arbitrator] step out of
the room[,] and then Counsel, once she is done[,] if one of you can
confirm that she is out of the room[,] and Mr. Hendrick will make a
record.
After the arbitrator made her disclosure and left the room, the AAA
representative asked if the parties objected to the proceeding continuing and received
no objection:
MR. BAIRD: Based on the disclosure that [the arbitrator] made, does
either side have any objection to her continued appointment in this
matter?
[MARSHALL’S COUNSEL]: Claimant has no objection.
[PARKVIEW’S COUNSEL]: Respondent has no objection.
7
MR. BAIRD: Okay. You can go ahead and bring [the arbitrator]
back in.
[MARSHALL’S COUNSEL]: She is being summoned.
(Arbitrator . . . enters the arbitration)
THE ARBITRATOR: I am back in the room.
MR. BAIRD: This will confirm [that] there are no objections to
your continued appointment. You are reaffirmed[, and] you can proceed
with the hearing.
After the arbitration concluded, the arbitrator provided the Award to the
parties. The Award accepted Marshall’s interpretation of Section 3.7—that it did not
place a limitation of a “‘reasonable time’ or any other time frame” on Marshall’s
exercise of his right to terminate the Contract if Parkview were unable to close by that
section’s deadline. Based on that interpretation, the Award granted Marshall the
declaratory relief that he sought to recover and the earnest money deposit and denied
Parkview’s counterclaims that Marshall had breached the Contract.
The Award then addressed the recovery of attorney’s fees and the
administrative fees and expenses of the arbitration. The Award addressed the
arbitrator’s basis for the fee award, was critical of the conduct of both parties’
counsel, and awarded Marshall’s counsel slightly more than fifty percent of the
requested fees:
Turning to the Parties’ fees and costs, Section 3.7 provides that
Respondent “shall pay . . . all costs and reasonable attorneys’ fees
incurred by Purchaser” if Claimant prevailed under Section 3.7. Costs
are to be awarded to Claimant in the amount Claimant sought, and fees
8
to be awarded are to be “reasonable.” Claimant’s counsel William S.
Richmond submitted a fee[-]and[-]expenses declaration asserting a claim
for $116,614.50 in legal fees and $6,400.00 in expenses. Respondent’s
counsel Kenneth Chaiken submitted a fee[-]and[-]expenses declaration
asserting a claim for $64,945.50 for legal fees plus costs. According to
those submissions, Mr. Chaiken’s hourly rate is higher than
Mr. Richmond’s and higher than those of anyone else in Mr. Richmond’s
firm who worked on this case. Of import to the “reasonable fee”
determination here is my conclusion that the Parties’ counsel were
unnecessarily uncooperative with each other and wasted time and
resources in ways that did not reasonably benefit the case preparation or
the Parties, evidenced by filings and arguments in the record. Even
counsels’ fee submissions were unnecessarily petty in opining about the
other side’s representation and services provided. Counsels’ conduct
created unreasonable fee expense[s] now being sought by Claimant.
This case is premised on a [C]ontract that neither side contended
was ambiguous, with each of the Claimant’s claim and Respondent’s
counterclaim seeking total damages of $183,750.00 in Earnest Money
Deposit. After consideration of both sides’ fee submissions, the
unnecessary and unproductive filings and arguments asserted, the
disparity between what the sides requested in fees, and the fact that
neither side contended the Purchase Contract was ambiguous (which
could have required evidence of contract negotiation or interpretation), I
find the reasonable fee and cost recovery to be awarded to Claimant to
be $61,250.00 in fees and $6,400.00 in costs.
As provided in Section 3.7, the administrative fees and expenses
of the American Arbitration Association totaling $5,750.00 and the
compensation and expenses of both the prior arbitrator and the
Undersigned Arbitrator totaling $29,100.00 shall be borne by
Respondent. Therefore, 2016 Parkview Condominiums Development,
LLC, shall reimburse Lawrence E. Marshall the sum of $20,300.00,
representing that portion of said fees and expenses in excess of the
apportioned costs previously incurred by Lawrence E. Marshall.
9
The Award prompted Parkview to file suit claiming that the Award should be
vacated,1 which crystalized into the contentions of its first amended motion regarding
why the Award should be vacated. The amended motion alleged three statutory
grounds to vacate: (1) the Award was obtained by undue means; (2) the arbitrator
exhibited evident partiality or engaged in willful misbehavior; and (3) the arbitrator
exceeded her powers. These grounds to vacate the Award were all tied to its award of
fees:
14. The [a]rbitrator granted remedies that were [not] authorized by the
Contract. The [a]rbitrator exceeded her powers in awarding attorney’s
fees and costs to Marshall pursuant to Section 3.7, which authorizes a
recovery of attorney’s fees and costs only if Parkview wrongfully
interfered with disbursement of the earnest money upon Marshall’s
timely exercise of a Section 3.7 termination. She also failed to award a
Section 3.7 remedy in the manner expressly stated in the Contract.
Section 7.4 of the Contract states that with respect to all provisions of
the Contract, time is of the essence. Marshall did not timely exercise his
termination right under Section 3.7, given that he did not attempt
termination until October of 2020, almost eleven months after the
November 1, 2019 date on which a Section 3.7 termination right
accrued. Return of the earnest money to the buyer is a specific remedy
available only upon the timely exercise of the termination right in
Section 3.7[,] but the Contract does not authorize such a remedy in the
event of an untimely termination.
15. But even if . . . Marshall[’s] termination was timely, there is no
finding by the [a]rbitrator that Parkview, as Seller, wrongfully interfered
with the title company’s release of the earnest money upon his putative
exercise of the Section 3.7 termination right. Thus[,] the award of
attorney’s fees and costs awarded by the [a]rbitrator is not an award
within her expressly specified powers, which are limited to awarding only
the specific relief provided expressly, in the Contract.
Marshall moved to transfer venue of the proceeding to Dallas County. The
1
trial court denied that motion. No issue regarding venue is raised on appeal.
10
The fact that the arbitrator awarded AAA its fees was also alleged to be an additional
example of evident partiality.
In turn, Marshall filed a motion to confirm the Award and responded to
Parkview’s motion to vacate. These pleadings chronicled how the arbitrator who had
heard the proceeding had been appointed, attached the transcript of the portion of
the proceeding during which the arbitrator had made her disclosure and then
continued without objection, and responded to the legal arguments raised by
Parkview. The focus of Marshall’s arguments was that the arbitrator’s conduct did
not support a claim of evident partiality or other misconduct and that the fee awards
were supported by the Contract and Texas law and were within the arbitrator’s power
to make. Marshall also sought the fees incurred to litigate its motion to confirm the
Award and filed written evidence to support the amount of fees he sought.
The trial court conducted two hearings on the parties’ motions. The first
hearing resolved little because the trial court concluded that a hearing on the motion
to confirm was premature as Parkview’s motion to vacate should be heard first.
During the second hearing, Parkview’s counsel was permitted to offer
testimony through his statements as an officer of the court. Counsel contended that
Parkview was not foreclosed from claiming that the arbitrator had exhibited evident
partiality even though Parkview had stated that it had no objection to her continuing
after she made her disclosure. Parkview argued that the arbitrator’s partiality did not
become apparent until she made the Award:
11
So, Judge, the standard for that is evident partiality occurs when there’s
been a failure to disclose facts by the arbitrator which, to an objective
observer, create a reasonable impression of her partiality. She’s
supposed to be impartial.
When we got an award from the arbitrator that included a penalty
as a remedy in a manner that ignored the provisions of the [C]ontract
itself and that exceeded the scope of what the [C]ontract allowed, it
became evident to us, as an objective observer, that there was, in fact,
evident partiality that had led to prejudice in the form of the imposition
of the final award in its entirety, and in particular, the penalty, at which
time we filed this proceeding which is, in fact, an objection under 088[2]
based upon prejudice caused by evident partiality.
So that is when we formally objected, once we had the
information that, in fact, there had been evident partiality. I think it’s
clear to any objective observer that had the full scope of those facts been
identified, and in a manner which gave us a reasonable opportunity to
evaluate them and to react to them, which we did not have as
contemplated by [the relevant case law] . . . .
Parkview’s counsel also elaborated on the argument regarding why Parkview
contended that the fee awards exceeded the arbitrator’s powers.
After the hearing, the trial court signed an order that confirmed the Award and
denied Parkview’s amended motion to vacate. The order stated that it was not
awarding fees or costs “to Confirm/Vacate the Arbitration Award.”3 Both Parkview
and Marshall filed notices of appeal.
2
See Tex. Civ. Prac. & Rem. Code Ann. § 171.088.
The title company holding the escrow money had intervened in the
3
proceeding, and its claims were nonsuited.
12
III. Analysis
A. We set forth the statutory grounds that Parkview alleged to vacate
the Award.
In this appeal, Parkview relies on two statutory grounds in the Texas
Arbitration Act for vacating the Award: the arbitrator exceeded her powers, and its
rights were prejudiced because the arbitrator acted with evident partiality. See Tex.
Civ. Prac. & Rem. Code Ann. § 171.088(a)(2)(A), (a)(3)(A) (“On application of a
party, the court shall vacate an award if[] . . . the rights of a party were prejudiced by[]
. . . evident partiality by an arbitrator appointed as a neutral arbitrator; . . . [or] the
arbitrator[] . . . exceeded [her] powers[.]”).
B. We reject Parkview’s contention that the arbitrator exceeded her
powers.
Parkview argues in its first issue that the arbitrator exceeded her powers by
awarding Marshall attorney’s fees. We overrule the issue. First, we lack a record that
permits review of the issue. Second, Parkview’s argument is not that the arbitrator
lacked the power to make her fee determination but that she erred in how she decided
the fee question. Whether the arbitrator properly decided a question that she had the
power to make is outside our limited scope of judicial review of an arbitration award.
1. We set forth how we review and the standards that apply to
the question of whether an arbitrator exceeded her powers.
We review de novo the question of whether the arbitrator exceeded her
powers. D.R. Horton-Tex., Ltd. v. Bernhard, 423 S.W.3d 532, 534 (Tex. App.—Houston
13
[14th Dist.] 2014, pet. denied). As with any contract, we determine whether the
arbitrator had the authority to make a decision by reviewing the arbitration agreement
between the parties because that is the source of the arbitrator’s power to decide an
issue. Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84, 90 (Tex. 2011).
If we conclude that the arbitrator has the authority to make a decision, then our
review is highly circumscribed; simply, our review is whether the arbitrator had the
authority to make the decision and not whether that decision is correct. Our sister
court has encapsulated the unilateral power of an arbitrator to interpret a contract and
apply the law to it as follows:
[A]n arbitrator exceeds his authority when he disregards the contract and
dispenses his own idea of justice. See Forged Components, Inc. v. Guzman,
409 S.W.3d 91, 104 (Tex. App.—Houston [1st Dist.] 2013, no pet.);
Townes Telecomms., Inc. v. Travis, Wolff & Co., 291 S.W.3d 490, 494 (Tex.
App.—Dallas 2009, pet. denied); see also Oxford Health Plans LLC v. Sutter,
[569] U.S. [564, 569], 133 S. Ct. 2064, 2068 . . . (2013). However, an
arbitrator does not exceed his authority simply because he may have
misinterpreted the contract or misapplied the law. See Ancor Holdings,
LLC v. Peterson, Goldman & Villani, Inc., 294 S.W.3d 818, 830 (Tex.
App.—Dallas 2009, no pet.) (“Thus, improvident, even silly
interpretations by arbitrators usually survive judicial challenges.”
(quotation omitted)); see also Anzilotti v. Gene D. Liggin, Inc., 899 S.W.2d
264, 266 (Tex. App.—Houston [14th Dist.] 1995, no writ). “[A]n
arbitrator does not exceed her authority by committing a mistake of
law[] but instead by deciding a matter not properly before her.”
LeFoumba v. Legend Classic Homes, Ltd., No. 14-08-00243-CV, 2009 WL
3109875, at *3 (Tex. App.—Houston [14th Dist.] Sept. 17, 2009, no pet.)
(mem. op.); accord Ancor Holdings, 294 S.W.3d at 830. “Thus, the
appropriate inquiry is not whether the arbitrator decided an issue
correctly[] but instead whether she had the authority to decide the issue at
all.” LeFoumba, 2009 WL 3109875, at *3.
Bernhard, 423 S.W.3d at 534.
14
What is sometimes termed an “essence test” applies to decide whether a
decision is within the arbitrator’s ambit; the “essence test” is “whether the basis for
the award ‘is rationally inferable’ from the parties’ arbitration agreement.” Taylor
Morrison of Tex., Inc. v. Fulcher, No. 13-20-00332-CV, 2022 WL 3092553, at *4 (Tex.
App.—Corpus Christi–Edinburg Aug. 4, 2022, pet. denied) (mem. op.). Stated a bit
differently, in our task of determining whether an arbitrator exceeded her powers, we
examine the language of the arbitration agreement and “resolve any doubts
concerning the scope of what is allowed in favor of arbitration.” Infinity Cap. II, LLC
v. Strasburger & Price, LLP, No. 01-15-00691-CV, 2016 WL 4254137, at *5 (Tex.
App.—Houston [1st Dist.] Aug. 11, 2016, pet. denied) (mem. op.). Further, “[w]hen
an arbitration clause employs broad language . . . , it is construed as evidencing the
parties’ intent to be inclusive rather than exclusive.” Centex/Vestal v. Friendship W.
Baptist Church, 314 S.W.3d 677, 685 (Tex. App.—Dallas 2010, pet. denied) (cataloging
cases with broadly phrased arbitration clauses).
In essence, the question before us funnels down to whether the arbitrator was
presented with the question of who should be awarded fees; if so, we cannot second-
guess the decision. Again, quoting the Fourteenth Court of Appeals,
We do not pass judgment on whether an arbitrator correctly awarded
attorney’s fees under the law[] but instead whether the issue of attorney’s
fees was properly before him. See Bernhard, 423 S.W.3d at 534 (“We pass
no judgment on whether the arbitrator made a correct decision under
the law and facts of this case.”); Centex/Vestal, 314 S.W.3d at 684. In
determining whether the arbitrator has exceeded his power, any doubt
concerning the scope of what is arbitrable is resolved in favor of
15
arbitration. Centex/Vestal, 314 S.W.3d at 684. When there is a broad
arbitration clause, arbitration of a particular claim should not be denied
unless it can be said “with positive assurance that the arbitration clause is
not susceptible of an interpretation that covers the asserted dispute.”
Kline v. O’Quinn, 874 S.W.2d 776, 782 (Tex. App.—Houston [14th Dist.]
1994, writ denied).
5177 Builders, Ltd. v. K&G Ests. LLC, No. 14-20-00853-CV, 2022 WL 4243855, at *1
(Tex. App.—Houston [14th Dist.] Sept. 15, 2022, no pet.) (mem. op.).
A principle with similarly sweeping import to the one that a broadly phrased
arbitration provision is construed inclusively is that the parties will be held to their
decision to submit an issue to an arbitrator:
The authority of arbitrators is also derived from the matters submitted
for determination. See City of Baytown v. C.L. Winter, Inc., 886 S.W.2d 515,
518–19 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (considering
scope of arbitration pleadings and parties’ agreement to determine
whether arbitrator exceeded his authority); Island on Lake Travis [, Ltd. v.
Hayman Co. Gen. Contractors, Inc.], 834 S.W.2d [529,] 533 [(Tex. App.—
Austin 1992), vacated pursuant to settlement, 848 S.W.2d 84 (Tex. 1993)].
Arbitrators do not exceed their authority when the matter addressed is
one which the parties agreed to arbitrate. See Pheng [Invs., Inc. v.
Rodriquez], 196 S.W.3d [322,] 329–30 [(Tex. App.—Fort Worth 2006, no
pet.) (op. on reh’g), abrogated on other grounds by Hoskins v. Hoskins, 497
S.W.3d 490 (Tex. 2016)].
Centex/Vestal, 314 S.W.3d at 686.
And beyond the legal constraints on our review, a party wishing to challenge an
award must bring us a record complete enough to establish its claimed basis to vacate.
Id. at 684. Without that record, “we must presume the arbitration evidence adequately
supported an award.” Id.16
2. The principles we have cited demonstrate that the arbitrator
had the power to and did determine the fee issue. We
cannot second-guess her ruling on that issue.
Parkview attempts to construct an argument by reading a limitation into the
arbitration agreement of the Contract and then superimposing that limitation on the
Contract provision that the arbitrator relied on to award fees. Parkview begins by
highlighting one sentence of the arbitration agreement in the Contract: “Section 7.27
of the Contract – its agreement to arbitrate – expressly provides that ‘[a]ll claims for
breach of this Contract or otherwise are limited solely to the specific remedies provided
for herein.’” [Emphasis added.] Parkview then pivots to find a limitation in the
“specific remedies” that Section 3.7 provides through the language that we italicize
below in that paragraph’s text:
Section 3.7 Failure to Close by November 1, 2019. If Closing fails to
occur by November 1, 2019, provided that Purchaser is not then in
default, Purchaser may terminate this Contract and shall be entitled to
the Earnest Money Deposit. In such event, the Title Company shall
immediately disburse the Earnest Money Deposit to Purchaser upon
written notice from the Purchaser to the Title Company. If the Seller
wrongfully interferes with the proper disbursement of the Earnest Money Deposit, then
Seller shall pay, upon the final order of the court with appropriate jurisdiction stating
that Purchaser is entitled to such disbursement, all costs and reasonable attorneys’ fees
incurred by Purchaser in connection with its recovery thereof and both the costs and
reasonable attorneys’ fees of the Title Company. This Section 3.7 shall survive
the termination of this Contract. [Emphasis added.]
From the highlighted provision, Parkview constructs an argument that
Section 3.7 creates a precondition to the award of attorney’s fees that the arbitrator
17
failed to find had occurred and thus must have ignored. The most succinct
formulation of this argument is the following from Parkview’s reply brief:
No award of attorney’s fees and costs was permitted under Section 3.7
unless there was an express finding by the [a]rbitrator of wrongful
interference as described by Section 3.7. The [a]rbitrator ignored the
predicate language of Section 3.7 that authorizes an attorney fee and cost
award to the Purchaser only “[i]f the Seller wrongfully interferes with
the proper disbursement of the Earnest Money Deposit.” The
[a]rbitrator nevertheless awarded Marshall over $86,000 in attorney’s fees
and expenses as a prevailing party (although not authorized to do so
anywhere in the [C]ontract) essentially converting an attorney’s fee award
into a penalty or sanction (as discussed below). The [a]rbitrator
exceeded her authority by awarding attorney’s fees and costs not
authorized by the [C]ontract between the parties with no finding of
conduct that would allow for such an award, contractually. A partial
vacatur is thus warranted.
Parkview’s argument has several fatal flaws. First, we have no transcript of the
arbitration testimony. We do not know what the factual record was on the question
of Parkview’s interference with release of the earnest money deposit. Parkview’s brief
states at one point that “the only evidence of any communication with the title
company by Parkview was its notice confirming its competing claim to the earnest
money, so that it remained in escrow pending a determination of which of the parties
was entitled to receive it.” But there is no record reference to support this statement,
and nothing to support it appears in the record before the trial court. In this
circumstance, “we must presume the arbitration evidence adequately supported an
award.” 5177 Builders, Ltd., 2022 WL 4243855, at *1.
18
Next, Parkview’s argument is selective in its quotation of the Contract’s
arbitration provision, which when read as a whole is a broad delegation to the
arbitrator to decide controversies arising under the Contract. The full text of the
arbitration provision is as follows:
Section 7.27 Arbitration/Limitation of Claims. All claims for breach of
this Contract or otherwise are limited solely to the specific remedies
provided for herein. Purchaser and Seller hereby further agree that any
controversy, claim[,] or dispute arising out of or relating to (a) the Contract, (b) any
breach thereof, (c) the sales transaction reflected in the Contract, (d) the
construction of the Subject Property, and/or (e) any representations or
warranties, express or implied, relating to the Subject Property, shall be
decided by arbitration in accordance with the rules of the American Arbitration
Association. All decisions by the arbitrators shall be final, and any judgment upon
the award rendered by the arbitrators may be confirmed, entered[,] and enforced in any
court having proper jurisdiction. Any action, regardless of form, arising out
of the transactions under this Contract must be brought by Purchaser
within two (2) years and one (1) day of [the] date [that] the cause of
action accrues. [Emphasis added.]
Thus, the arbitration provision had a limitation, but it also vested the arbitrator with
the authority to make a final decision of claims arising from the Contract and how the
limitation applied. We apply the test that “[w]hen there is a broad arbitration clause,
arbitration of a particular claim should not be denied unless it can be said ‘with
positive assurance that the arbitration clause is not susceptible of an interpretation
that covers the asserted dispute.’” Id.Under the strictures of that test, we cannot say with positive assurance that the
arbitration clause did not encompass the question that the arbitrator decided on the
question of fees. Instead, Parkview seeks to have us turn this rule on its head and
19
narrowly construe the arbitration provision or apply it so that it presumptively
excludes claims. By vesting the arbitrator with authority to make a final decision with
respect to a controversy “arising out of or relating to” the Contract, Parkview agreed
to allow the arbitrator to decide the question that Parkview would now have us
second-guess.
Also, the Award recites that the parties submitted fee requests for and proof of
their fees to the arbitrator. This conduct is inconsistent with the claim that the
arbitrator exceeded her powers by resolving the very issue that the parties sought to
have her resolve.
And there is another flaw in Parkview’s argument. Parkview argues that the
arbitrator made an erroneous decision in her implied finding that Parkview’s actions
constituted the type of interference that permitted a recovery of attorney’s fees under
Section 3.7 and also erred by not making an explicit finding with the reasoning for her
decision regarding why Parkview’s actions constituted interference. Again, as the
authority we quoted above demonstrates, our review is limited to whether the
provisions in question are not susceptible to an interpretation granting the arbitrator
the power to make the decision by placing the question in the arbitrator’s purview.
Parkview’s argument is that the arbitrator misapplied the section rather than that she
had no power to make a fee award. That question is outside the scope of our review.
For example, Parkview assumes that the language it highlights in Section 3.7 must
mean that it interfered with the title company to stop the return of the earnest money.
20
But the arbitrator may have also considered as wrongful interference Parkview’s
action in challenging Marshall’s ability to recover the earnest money. As it was the
arbitrator’s decision to determine what the provision means, whether that
interpretation is wrong or right is not one within our limited scope of review.
We overrule Parkview’s first issue.
C. Parkview cannot vacate the Award by claiming that the arbitrator
acted with evident partiality.
In its second issue, Parkview argues that the trial court erred by confirming the
arbitration award, in whole or in part, in the face of clear evidence that Parkview’s
rights were prejudiced by the arbitrator’s evident partiality. The arbitrator spoke to an
outside representative of a developer to discuss a possible purchase of a
condominium. Though we do not know the particular role of the person, the same
representative apparently spoke to Marshall. The arbitrator indicated that she had
made a deposit, which was eventually returned to her when the pandemic delayed the
development. She was apparently still interested in the development because she later
inquired about the status of the development with the representative. What
apparently prompted the arbitrator to mention these events was not that she was
interested in the condominium at issue but hearing the representative’s name during
the arbitration hearing.
From the timing of the disclosure and her subsequent ruling permitting
Marshall to recover a portion of his fees, Parkview sees dark motives that evidence
21
partiality on the part of the arbitrator. We do not. The arbitrator had a commonplace
experience of inquiring about and making a deposit as an indication of interest in a
property, receiving her money back when the property was not developed, and
apparently remaining interested in making a purchase. The trial court acted within its
discretion to find that the inference of bias that Parkview tries to draw is too
speculative and remote from the arbitrator’s disclosure of a common life experience
that seems not to have soured her on purchasing a condominium. And, paradoxically,
Parkview told the trial court that when the disclosure was made, it did not view what
the arbitrator revealed as evidencing partiality. Now, Parkview tries to excuse that
position and its statement that it had no objection to the arbitrator’s continued service
by claiming it did not suspect her of partiality until she made her fee award.
Parkview’s wait-and-see approach waived its partiality claim. Also, in addition to the
fact that the fee decision was within the arbitrator’s ambit to make, Parkview never
confronts the contradiction of why if the arbitrator was out to get Parkview, she
slashed the amount of Marshall’s counsel’s fees and criticized his counsel’s conduct
while doing so.
1. We set forth the standard of review that applies to the trial
court’s decision that the arbitrator did not act with evident
partiality.
The standard of review for questions of whether an arbitration award should be
vacated because the arbitrator exhibited evident partiality is de novo, but the question
22
also has an inherent factual component that increases the deference we show a trial
court’s decision. As the Fourteenth Court of Appeals has noted,
We review a trial court’s order setting aside or vacating an arbitration
award under a de novo standard of review. See Amoco D.T. Co. v. Occidental
Petroleum Corp., 343 S.W.3d 837, 844 (Tex. App.—Houston [14th Dist.]
2011, pet. denied). Review of a trial court’s decision on evident partiality
also involves a factual inquiry. See id. When a trial court resolves fact
disputes in the context of a claim of evident partiality or misconduct, we
review the trial court’s fact findings for legal and factual sufficiency while
legal conclusions are reviewed de novo. See id. (quoting Las Palmas Med.
Ctr. v. Moore, 349 S.W.3d 57, 66 (Tex. App.—El Paso 2010, pet. denied)).
Where, as here, no findings of fact or conclusions of law are issued by
the trial court, we imply all facts supported by the evidence and
necessary to support the judgment. See BMC Software Belg[.], N.V. v.
Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Worford v. Stamper, 801 S.W.2d
108, 109 (Tex. 1990). The trial court’s order will be affirmed if it can be
upheld on any legal theory supported by the evidence. Worford, 801
S.W.2d at 109.
Builders First Source-S. Tex., LP v. Ortiz, 515 S.W.3d 451, 455–56 (Tex. App.—Houston
[14th Dist.] 2017, pet. denied).
2. We set forth the standards for determining when an
arbitrator’s conduct creates a reasonable impression that the
arbitrator exhibited evident partiality.
As we have noted, one of the statutory grounds to challenge an arbitration
award is whether the arbitrator’s evident partiality prejudiced a party. See Tex. Civ.
Prac. & Rem. Code Ann. § 171.088(a)(2)(A). The test to determine if a disclosure
prompts a concern about partiality is whether the disclosure would impact an
objective observer’s reasonable impression of the arbitrator’s partiality:
“Evident partiality is established by the nondisclosure of ‘facts which
might, to an objective observer, create a reasonable impression of the
23
arbitrator’s partiality[,’] regardless of whether the nondisclosed
information necessarily shows partiality or bias.” Forest Oil Corp. v.
El Rucio Land [&] Cattle Co., . . . 518 S.W.3d 422, 431 (Tex. 2017)
(quoting Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, 437 S.W.3d
518, 524 (Tex. 2014)). “However, if an objective observer could not
believe the undisclosed information might create a reasonable
impression of partiality, the information is trivial[,] and the arbitrator did
not exhibit partiality by failing to disclose it.” Amoco D.T. Co. . . . , 343
S.W.3d [at] 844 . . . .
Sebastian v. Wilkerson, No. 09-18-00223-CV, 2019 WL 470087, at *3 (Tex. App.—
Beaumont Feb. 7, 2019, no pet.) (mem. op.).
The trigger for disclosure depends on the materiality of the information
revealed:
An arbitrator is only required to disclose facts that are material. Forest
Oil Corp., 518 S.W.3d at 431. The consequences of the nondisclosure
should be directly tied to the materiality of the unrevealed information.
Mariner Fin. Grp., Inc. v. Bossley, 79 S.W.3d 30, 32–33 (Tex. 2002). A party
should have access to all information that might reasonably affect the
arbitrator’s partiality, which would obviously include a familial or close
social relationship. Amoco D.T. Co., 343 S.W.3d at 843. However, an
arbitrator is not required to disclose “‘trivial’” matters. Forest Oil Corp.,
518 S.W.3d at 431 (quoting Burlington N. R.R. Co. v. TUCO Inc., 960
S.W.2d 629, 637 (Tex. 1997)). “Some undisclosed relationships are too
insubstantial to warrant vacating an award.” Id. Because the party
asserting evident partiality has the heavy burden to establish specific
facts that indicate an improper motive on the part of the arbitrator, the
alleged partiality must be direct, definite, and capable of demonstration
rather than remote, uncertain, and speculative. Int’l Bank of Commerce-
Brownsville v. Int’l Energy Dev. Corp., 981 S.W.2d 38, 44 (Tex. App.—
Corpus Christi[–Edinburg] 1998, pet. denied).
Id. In other words, remote contacts are not probative of evident partiality. See also
Burke v. Hous. PT BAC Off. Ltd. P’ship, No. 01-21-00288-CV, 2024 WL 187445, at *7
(Tex. App.—Houston [1st Dist.] Jan. 18, 2024, no pet.) (mem. op on reh’g) (“The
24
remote contacts about which the Landlords complain do not demonstrate evident
partiality.”); Sebastian, 2019 WL 470087, at *4 (concluding arbitrator was not required
to disclose her prior relationship with homeowners concerning purchase from their
business fifteen years before arbitration occurred because nondisclosure was based on
remote relationship that had no effect on arbitrator’s interest in outcome of
arbitration); Dotcom Ltd. Co. v. DP Sols., Inc., No. 12-16-00340-CV, 2017 WL 3224887,
at *4 (Tex. App.—Tyler July 31, 2017, no pet.) (mem. op.) (“A relationship between
an arbitrator and a party ‘must be ongoing and direct rather than speculative and
remote’ in order to support a claim of arbitrator partiality.”).
Also, simply because some prior life experience of an arbitrator creates a
potentially negative predisposition toward one party to the arbitration, the arbitrator is
not required to catalog every such experience in her disclosure. For example, a federal
court held that an arbitrator who had been involved as a plaintiff in a similar type of
lawsuit as he was arbitrating was not required to disclose that involvement. See
Trimark Hotel Corp. v. Int’l Union of Operating Eng’rs Loc. Union No. 70, 593 F. Supp. 3d
885, 898–99 (D. Minn. 2022). As the opinion explained, there must be some concrete
relationship between the arbitrator and a party rather than the suggestion of some
amorphous institutional predisposition to trigger disclosure:
By contrast, the alleged suggestion of bias in this case does not involve a
connection between the arbitrator and either party to the arbitration.
Rather, it arises from [the arbitrator’s] personal involvement in a prior
employment-discrimination lawsuit against a former employer.
[Appellant] does not cite any case, and this [c]ourt’s own research has
25
not identified one, in which a court has vacated an arbitration award for
a similar nondisclosure. In suggesting that such a failure to disclose
creates disqualifying “evident partiality,” [appellant] essentially argues
that because [the arbitrator] once believed he had a viable claim that he
was wrongfully terminated by his own employer and sued that employer,
he would be biased against any employer accused of wrongfully
discharging any employee. However, the facts do not reasonably suggest
that he is forever predisposed in favor of any employee involved in a
dispute against any employer. Uhl v. Komatsu Forklift Co. . . . , 512 F.3d
294, 306 (6th Cir. 2008) (“It is not enough to demonstrate an
amorphous institutional predisposition toward the other side.”).
Id. at 899.
3. We conclude that the trial court could find the arbitrator’s
disclosure did not support a claim of evident partiality.
We are unable to understand how what Parkview claims the arbitrator failed to
disclose was material or how it was outside the ambit of the trial court’s factfinding
powers to find that it was not material. In essence, the arbitrator revealed that she
had spoken to a person who had also spoken to Marshall about a condominium
purchase. This person was apparently not an employee of Parkview but had an
affiliation with a different developer. According to the arbitrator, the following was
the scope of her discussions:
I disclosed and I am re-disclosing again that Ms. Holloway was the
representative of a condo developer in Dallas and I believe she was an
outside employee, outside contracted person but she was the
representative of that developer in a condo development in Dallas.
I had several meetings with her. I did -- I did not sign a contract
to purchase. I signed an indication of interest because the condo
development never got beyond indications of interest. I paid some
money. It became apparent that this condo development was never
going to -- or was not going to happen in [a] reasonable time[,] and I
26
think it was doing -- and it was all COVID related as well as some other
issues that I don’t even know and I got my $15,000 back.
I did speak to Ms. Holloway at some time that I don’t recall in the
last six to eight months to find out if they had -- were ever going to go
back and redevelop that and she told me something about -- there might
be -- seeing about announcing something in the fall of 2022. I have not
spoken to her since that time.
Thus, the arbitrator apparently paid some money to obtain some right in a property,
the pandemic intervened, and the money was returned to her. Apparently, she was
still interested in the property. The arbitrator’s statements did not disclose any
concrete relationship with a party and did not even disclose an amorphous
institutional predisposition against the sellers of condominiums in general.
Further, when the disclosure was made, Parkview met it with indifference.
Given the opportunity to ask the arbitrator further questions after her statement—
such as if the arbitrator had a good or bad experience with Holloway—Parkview’s
counsel stated that he had none. Asked if he had an objection to the arbitrator’s
continued service, Parkview’s counsel stated that he had none.
At bottom, how the arbitrator’s experience would sway the arbitrator to carry
some ire against Parkview is unexplained. Even if her experience negatively impacted
the arbitrator’s views of condominium developers—which nothing indicated that it
would—it is also unexplained how that experience created an inference that the
arbitrator held a bias because it did not reveal facts suggesting a potential bias that
27
were “direct, definite, and capable of demonstration rather than remote, uncertain,
and speculative.” See Sebastian, 2019 WL 470087, at *3.
What Parkview argues instead is that the disclosure must have been material
because when the arbitrator heard Holloway’s name, the arbitrator mentioned her
dealings with her. Specifically, Parkview argues that
[i]n the case at hand, the [a]rbitrator’s initial non[]disclosure of her
personal experience in a similar transaction and subsequent partial
disclosure in the middle of the final hearing[] cannot be considered
trivial. After all, she eventually found a need to make amended
disclosures. Rather than candidly and honestly detailing all of the facts
of her experience, she disclosed only the very basics, while assuring the
parties that she could continue to preside in a fair and impartial manner.
This argument is unpersuasive because the inference that Parkview tries to draw is
absent. It was the arbitrator’s contact with a certain person rather than her experience
with a condominium purchase that triggered her disclosure. Indeed, until hearing the
person’s name, the arbitrator apparently did not think her experience in considering
buying a condominium warranted disclosure.
Perhaps the best summary of why the arbitrator’s experience did not warrant
disclosure came from Parkview’s counsel, who offered this explanation to the trial
court regarding why Parkview did not object when the arbitrator made her disclosure:
“The disclosure gave no indication of evident partiality at the time it was made; therefore, we did
not object to her continuation as the arbitrator at that time.” [Emphasis added.]
Thus, Parkview’s own words contradict its contention that the arbitrator must have
28
been concealing material information that she knew should have been previously
disclosed.
Trying to excuse its failure to object, Parkview argues that the arbitrator’s
partiality did not become evident until she made her award that included the fees that
were discussed in the prior section of this opinion. In Parkview’s words,
[W]e know that the [a]rbitrator’s partiality manifested itself in her final
award, where she imposed as a penalty, an attorney fees and cost
payment penalty upon Parkview that was supported by no evidence, let
alone critically necessary evidence and an associated finding of
wrongdoing by Parkview that not only did not exist[] but [also] could not
exist[] because objecting to the release of earnest money to allow for
litigation of who is entitled to the money[] can never be a wrongful act[]
even if it delays release of the funds.
To make this argument, Parkview ignores the facts that undermine it. As noted, the
arbitrator cut the fee award to Marshall’s counsel by almost fifty percent of what was
sought. How a ruling so contrary to Marshall’s position supports an inference that
the arbitrator held a hidden ire toward condominium developers is another conclusion
that Parkview leaves unexplained.
Further, we have already held that the fee issue was within the arbitrator’s
ambit to decide. Parkview cannot transform its disagreement with a decision that the
arbitrator had the discretion to make into evidence of bias. Even if we were to accept
that a ruling by an arbitrator could be probative of bias, Parkview’s argument asks us
to vacate the Award based on its self-serving speculation that the ruling was
motivated by bias and not the arbitrator’s good-faith resolution of a question that was
29
properly before her. See, e.g., Aalfs Fam. P’ship v. GSL Holdings, S.A. de C.V., No. 21-
CV-4038-CJW-KEM, 2022 WL 1504872, at *19 (N.D. Iowa Apr. 11, 2022) (order)
(stating that “respondents imply that some kind of personal preference must have
existed for [the arbitrator] to act as he did”; that “[e]ssentially, respondents ask the
[c]ourt to find that because [the arbitrator] made rulings and excluded important
evidence in petitioners’ favor, he must have had a relationship that favored
petitioners”; and that “[t]his argument is pure speculation”).
An implied finding of the trial court was that the information the arbitrator
failed to disclose was not material. Both the nature of the information and Parkview’s
indifference to it support that finding. Nor can Parkview argue that it was awakened
to the arbitrator’s partiality by the Award. That argument is both a back-door attempt
to have us review the merits of the Award—which we cannot do—and an inference at
odds with a ruling that negatively impacted Marshall.
4. The record also supports an implied finding that Parkview
waived its evident-partiality ground to vacate the Award.
Parkview argues that we should turn a blind eye to the fact that once the
arbitrator made her disclosure, Parkview’s counsel stated that it had “no objection” to
the arbitrator’s continued service. To make this argument, Parkview embellishes the
nature of the disclosure and offers an unpersuasive excuse why the disclosure did not
prompt the need to make an objection if Parkview had one.
30
The Texarkana Court of Appeals detailed the general principle that a party
cannot stand idly by when it learns of facts raising a fear of partiality:
“In judicial proceedings, the requirements for preserving complaints and
for the record are set out, respectively, in Rules 33 and 34 of the Texas
Rules of Appellate Procedure. Although these rules are not written for
appeals from arbitration awards, their principles should govern such
appeals.” Nafta Traders . . . , 339 S.W.3d [at] 101 n.80 . . . . Indeed, a
party can waive an otherwise valid objection by proceeding with the
arbitration despite knowledge of facts giving rise to such an objection.
Graham-Rutledge & Co. v. Nadia Corp., 281 S.W.3d 683, 688 (Tex. App.—
Dallas 2009, no pet.). As a result, “[a] party who knows or who has
reason to know of an arbitrator’s alleged bias but remains silent pending
the outcome of the arbitration waives the right to complain.” Tex.
Health Mgmt., LLC v. Healthspring Life & Health Ins. Co., No. 05-18-
01036-CV, 2020 WL 3071729, at *4 (Tex. App.—Dallas June 10, 2020,
no pet.) (mem. op.). When a party believes the arbitrator is biased, he
“may not sit idly by during an arbitration procedure and then collaterally
attack that procedure on grounds not raised before the arbitrator when
the result turns out to be adverse.” Bossley v. Mariner Fin. Grp., Inc., 11
S.W.3d 349, 351–52 (Tex. App.—Houston [1st Dist.] 2000), aff’d, 79
S.W.3d 30 (Tex. 2002); see Dealer Comput[.] Servs., Inc. v. Michael Motor Co.,
485 F. App’x 724, 727 (5th Cir. 2012) (party seeking to vacate arbitration
award based on evident partiality must object during arbitration; failure
to do so results in waiver of right to object); Delta Mine Holding Co. v.
AFC Coal Props., Inc., 280 F.3d 815, 821 (8th Cir. 2001) (“Even when a
neutral arbitrator is challenged for evident partiality, the issue is deemed
waived unless the objecting party raised it to the arbitration panel.”);
Cook Indus., Inc. v. C. Itoh & Co. (Am.), 449 F.2d 106, 107–08 (2d Cir.
1971) (“Where a party has knowledge of facts possibly indicating bias or
partiality on the part of an arbitrator he cannot remain silent and later
object to the award of the arbitrators on that ground. His silence
constitutes a waiver of the objection.”).
Load Trail, LLC v. Julian, 622 S.W.3d 472, 478 (Tex. App.—Texarkana 2021, no pet.);
see also Sebastian, 2019 WL 470087, at *4 (“Because [the arbitrator] disclosed . . .
relationships [that formed the basis of a partiality claim] during the arbitration and
31
[the party moving to vacate the award] failed to complain, [that party] has waived his
complaint for appeal.”); Skidmore Energy, Inc. v. Maxus (U.S.) Expl. Co., 345 S.W.3d
672, 684 (Tex. App.—Dallas 2011, pet. denied) (“Appellants did not raise an
objection of evident partiality of [the] arbitrator . . . until after the arbitration award by
the panel majority. A party who knows or has reason to know of an arbitrator’s
alleged bias but remains silent pending the outcome of the arbitration waives the right
to complain.”); Kendall Builders, Inc. v. Chesson, 149 S.W.3d 796, 804–06 (Tex. App.—
Austin 2004, pets. denied) (op. on reh’g) (“Having elected to proceed with arbitration
in the face of their knowledge of the arbitrator’s losses in [the company that employed
one of the claimant’s] stock, appellees cannot now complain of the outcome.”).
Of course, if the party does not have full knowledge of the facts that should
have prompted the objection, there is no waiver. Tenaska Energy, 437 S.W.3d at 528
(“Here, [appellant] is challenging [the arbitrator’s] partiality based on the information
he failed to disclose. [Appellant] did not waive its evident partiality challenge by
proceeding to arbitration based upon information it was unaware of at that time.”).
Parkview tries to argue that it falls under the rule of Tenaska and rationalizes its
failure to object by exaggerating what the arbitrator disclosed at the hearing:
Parkview proceeded to the arbitration’s final hearing unaware of
disclosable facts bearing on this arbitrator’s partiality. Here, in contrast
to the situation in Tenaska, the [a]rbitrator had failed to make any
disclosures about her personal experience in a real[-]estate[-]purchase
transaction, let alone that her experience in that transaction formed an
actual bias against developer sellers who did not deliver their projects to
buyers when the buyers wanted or expected delivery. The [a]rbitrator
32
should have fully disclosed her past experience either when she was
appointed as an arbitrator, or at the preliminary hearing she first
conducted, when clearly[] she knew about the subject matter of this case,
and her recollection of a disclosure need should have been triggered.
Instead, the [a]rbitrator did not attempt any disclosure until the hearing
was fully underway, which itself is cause of concern about her bad faith
in not earlier disclosing a clearly disclosable situation, as is the fact that
her mid-hearing disclosure was incomplete[] and neglected to mention
that she harbored some partiality in favor of a buyer, who like her, put
up a substantial deposit to reserve a condo in a project that was built or
completed when it was expected to be, when the reservation deposit had
been made.
Again, Parkview wants to gild the lily by arguing that the arbitrator was a disgruntled
condominium buyer—a conclusion at odds with what she actually disclosed. And
again, her disclosure was not prompted by her interest in purchasing a condominium
but by hearing the name of a person with whom she had dealt and with whom
Marshall had also dealt.
Further, we have noted that we disagree that the arbitrator even had the duty to
disclose that she had an interest in purchasing a condominium. Thus, Parkview
cannot claim that disclosure was lacking in the first place and logically cannot excuse
the absence of a failure to object when confronted with trivial information. Id. (“If
waiver cannot be predicated on undisclosed information, that information must
nonetheless be more than trivial to satisfy the standard for evident partiality . . . .”).
Finally, we are unpersuaded by Parkview’s argument that it could take a wait-
and-see approach once the arbitrator made her disclosure. Parkview argues that
“[f]aced with a proverbial Hobson’s choice[—]object to the [a]rbitrator’s presiding
33
over the hearing at significant risk of offending the [a]rbitrator if the objection was
not sustained, or proceed with the [a]rbitrator who might already be biased[—]
Parkview chose not to object at that time.” First, this argument mischaracterizes
Parkview’s actions; it did not “choose not to object” but affirmatively stated that it
had no objection after foregoing the opportunity to ask the arbitrator more questions
about her experience. Second, as the authority we cited notes, a party cannot ignore a
disclosure that should have prompted an objection, lay behind the log, and then use
the disclosure to attack an award. See Load Trail, LLC, 622 S.W.3d at 478. Fear of
offending the arbitrator is not an excuse for not making an objection prompted by a
disclosure. See id. at 479 (“Load Trail therefore decided that, rather than potentially
offending the arbitrator by objecting to perceived actual bias, it would not object.
That choice resulted in waiver of Load Trail’s claims of actual bias that allegedly
occurred during the arbitration proceeding.”).
We overrule Parkview’s second issue.
D. We reject Marshall’s sole issue in his appeal because the trial court
did not abuse its discretion by denying his claim for fees incurred
in litigating his motion to confirm the Award and Parkview’s
motion to vacate.
Marshall has filed his own appeal arguing in a single issue that the trial court
erred by denying his claim for attorney’s fees and costs associated with his motion to
confirm the Award and Parkview’s motion to vacate it. Here, the Award took the
unusual approach of not deciding what fees to award should (1) a motion to confirm
34
or vacate be filed and (2) an appeal of a ruling on those motions be perfected.
Instead, it placed the determination of what should be awarded for those
contingencies in the discretion of the trial court. Marshall ignores that the trial court
could have exercised its discretion to decide either that it was not within its purview to
award additional fees or that the already awarded fees were adequate.
As noted, the arbitrator awarded Marshall more than $60,000 as reasonable
attorney’s fees for the efforts of his counsel to recover his earnest money deposit.
With respect to fees associated with a motion to confirm or vacate and an appeal of
orders resolving those motions, the arbitrator kicked that matter back to the trial
court in the Award’s following provision:
Should this award be presented to a court for confirmation into a
judgment or on a vacatur motion, the court may determine the amount
of reasonable fees and costs for the confirmation/vacation process, any
fee and cost amounts to be awarded in the event of an unsuccessful
appeal by Respondent to a court of appeals, any fee and cost amounts to
be awarded in the event Respondent files a petition for review with the
Texas Supreme Court that is not granted, and any fee and cost amounts
to be awarded in the event a petition for review is granted but the Texas
Supreme Court finds Claimant successful in this matter.
Marshall filed a fee request for an additional $36,000 in fees related to the litigation in
which he sought to confirm the Award and Parkview sought to vacate it. He also
sought a conditional award of fees on appeal. The trial court rendered an order
stating that it was “not awarding fees or costs of this hearing to Confirm/Vacate the
Arbitration Award.”
35
Attorney’s fees are recoverable only when provided for by statute or by the
parties’ agreement. Dall. Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75, 77 (Tex.
1992); Jackson v. Biotectronics, Inc., 937 S.W.2d 38, 44 (Tex. App.—Houston [14th Dist.]
1996, no writ) (op. on reh’g). We generally review a trial court’s decision to award
attorney’s fees for an abuse of discretion. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.
1998). Simply, “[t]he fixing of a reasonable attorney’s fee is a matter within the sound
discretion of the trial court, and its judgment will not be reversed on appeal absent a
clear abuse of discretion.” Spector Gadon & Rosen, P.C. v. Sw. Sec., Inc., 372 S.W.3d 244,
251 (Tex. App.—Dallas 2012, no pet.). With respect to the principles that we apply
to determine whether an abuse of discretion has occurred, we note that
[a] trial court abuses its discretion if it acts in an arbitrary or
unreasonable manner without reference to any guiding rules or
principles. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per
curiam). We may not reverse for an abuse of discretion merely because
we disagree with the trial court’s decision; we must affirm so long as the
decision is within the trial court’s discretionary authority. Beaumont Bank,
N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). The party claiming an
abuse of discretion has the burden on appeal to show it. City of Houston
v. Woods, 138 S.W.3d 574, 580 (Tex. App.—Houston [14th Dist.] 2004,
no pet.).
Nigerian Found. v. Umezulike, No. 01-20-00262-CV, 2022 WL 2923202, at *11 (Tex.
App.—Houston [1st Dist.] July 26, 2022, no pet.) (mem. op.).
The principle that controls whether a party may recover fees associated with a
motion to confirm an arbitration award is that “[i]f an arbitration award includes an
award of attorneys’ fees, a trial court may not award additional attorney fees for
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enforcing or appealing the confirmation of the award, unless the arbitration
agreement provides otherwise.” Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 436 (Tex.
App.—Dallas 2004, pet. denied); see also Bell v. Harrell, 653 S.W.3d 14, 17 (Tex. App.—
Amarillo 2022, pet. denied) (noting authority “generally holding that ‘a trial court’ may
not award additional attorney’s fees for enforcing or appealing the confirmation of the
award if an arbitrator’s decision already includes an award of attorney’s fees”).
Based on an opinion applying federal law, Marshall also tries to engraft a rule
that if a party’s challenge on an arbitration is without merit, fees should be awarded.
The primary case that Marshall cites for this proposition is Int’l Ass’n of Machinists &
Aerospace Workers, Dist. 776 v. Tex. Steel Co., 639 F.2d 279, 283–84 (5th Cir. 1981).
One of our sister courts examined a situation in which “[t]he parties’ agreements did
not provide for attorney’s fees for enforcing the confirmation of the arbitration
award,” but the party seeking confirmation of the award argued fees could be awarded
under the “without merit” principle invoked by Marshall. See Acra v. Bonaudo, No. 05-
17-00451-CV, 2018 WL 3238133, at *6 (Tex. App.—Dallas July 3, 2018, no pet.)
(mem. op.).
Acra rejected the argument that the “without merit” principle found in federal
law altered the rule in Texas law that post-arbitration attorney’s fees cannot be
awarded absent a contract provision providing for that recovery:
Appellees argue that the trial court may award attorney’s fees when a
party’s challenge to an arbitration award is “without merit[]” and the
party’s refusal to abide by the award is “without justification.” In
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support of their argument, appellees cite Stage Stores, Inc. v. Gunnerson, 477
S.W.3d 848 (Tex. App.—Houston [1st Dist.] 2015, no pet.), in which the
court stated, “When a party’s challenge to an arbitration award is
‘without merit’ and its refusal to abide by the award is ‘without
justification,’ a trial court can award attorneys’ fees to the party seeking
to confirm the arbitration award.” Id. at 863–64. The court of
appeals’[s] authority for this statement was a case from the Fifth Circuit
Court of Appeals, Executone Information Systems, Inc. v. Davis, 26 F.3d 1314,
1331 (5th Cir. 1994), which relied on an earlier opinion from the Fifth
Circuit, International Association of Machinists & Aerospace Workers, District
776 . . . , 639 F.2d [at] 283–84 . . . . Appellees also argue that an award
of attorney’s fees for defending against a meritless motion to vacate an
arbitration award is supported by the public policy favoring expedient,
efficient, and cost-effective arbitration.
Regardless of how the federal courts may award attorney’s fees or
the strength of the public-policy arguments, Texas law does not allow
recovery of attorney’s fees unless authorized by statute or contract.
Wells Fargo Bank, N.A.[ v. Murphy], 458 S.W.3d 912, 915 (Tex. 2015);
Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006).
None of the agreements between the parties or their affiliates provide
for an award of attorney’s fees for proceedings to confirm an arbitration
award or for opposing a motion to vacate an arbitration award. Nor
does any applicable statute provide for attorney’s fees in this situation.
Section 171.092 permits the trial court, in an order that confirms,
modifies, or corrects an arbitration award, to award “costs of the
application and of the proceedings subsequent to the application.”
[Tex.] Civ. Prac. [& Rem. Code Ann.] § 171.092(b). But that statute does
not authorize the trial court to award attorney’s fees.
Id. at *6–7 (footnote omitted). We agree that federal precedent does not apply and
thus Marshall’s effort to invoke that precedent fails because it relies on a rule
inapposite of Texas law’s limitation that post-arbitration fees cannot be recovered
absent a contract provision providing for that recovery.
Here, though the arbitrator awarded fees, she then delegated the question to
the trial court of what reasonable fee awards were warranted in dealing with the
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confirmation or vacation of the Award and an appeal. Whether this was an
appropriate delegation of her authority is open to question. See Bell, 653 S.W.3d at 20
n.2 (“The arbitrator effectively left the actual calculation of the fees to the trial court,
and [appellant] failed to argue that such was impermissible. Thus, whether the trial
court has the authority to calculate the amount of fees pursuant to an arbitrator’s
award of them is not before us.”).
Marshall assumes that the arbitrator’s delegation to the trial court was
appropriate, and then argues that the Contract required an award of fees by citing the
following provisions:
Section 7.27 of the Contract states that the parties are to arbitrate any
dispute arising out of or relating to the Contract. Section 3.7 states that
“[Parkview] shall pay, upon final order of the court with appropriate
jurisdiction stating that [Marshall] is entitled to [the Earnest Money
Deposit], all costs and reasonable attorneys’ fees incurred by [Marshall]
in connection with its recovery thereof[.]” Furthermore, Section 7.14
states[,] “If it shall be necessary for either Purchaser or Seller to
employee [sic] an attorney to enforce its rights pursuant to this Contract,
the defaulting party shall reimburse the non[-]defaulting party for
reasonable attorneys’ fees and costs.” [Record references omitted.]
Marshall assumes but does not explain how these provisions specifically provide for a
recovery of confirmation fees and alter the general rule that a “trial court may not
award additional attorney fees for enforcing or appealing the confirmation of the
award.” See Crossmark, Inc., 124 S.W.3d at 436. The language in Section 3.7 that is the
crux of Marshall’s argument—that Parkview shall pay “all costs and reasonable
attorneys’ fees incurred by [Marshall] in connection with its recovery thereof”—does
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not vest the trial court with the power to make a fee award above and beyond that
made by the arbitrator. Nor does Section 7.14 empower the trial court to award fees
associated with confirmation of an arbitrator’s award or a challenge to it. See Jones v.
Carlos & Parnell, M.D., P.A., No. 05-17-00329-CV, 2017 WL 4930896, at *7 (Tex.
App.—Dallas Oct. 31, 2017, pet. denied) (mem. op.) (reviewing clause that provided
that “[i]n the event suit be instituted for breach or default of any of the conditions of
this Agreement, the party prevailing in any such action, in law or equity shall be
entitled to reasonable attorney’s fees and court costs” and noting that clause did “not
provide for a further award of attorney’s fees for enforcing or appealing the
confirmation of an arbitration award by the trial court”). Marshall’s position also
appears contradictory to his prior position that these very provisions placed the
question of fees within the ambit of the arbitrator.
Here, the trial court’s order denying Marshall’s post-arbitration fee claim did
not state a reason for that ruling. We see three rationales that would support the trial
court’s exercise of its discretion not to award fees for post-arbitration proceedings:
• Whatever the arbitrator’s effort to pass the question of post-arbitration fees
to the trial court, the trial court may have doubted its ability to make a
decision vested in the arbitrator, and Marshall offers no argument that she
could do so.
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• The trial court could have doubted that the Contract provided for a
recovery of fees for confirmation of the Award or for a fee award beyond
that made by the arbitrator. The Contract provisions that Marshall cites do
not address these questions nor place them in the ambit of the trial court.
Further, Marshall’s “without merit” argument based on federal precedent
was not made to the trial court, and even if it had been, we hold that it is
not a valid basis on which to award post-arbitration fees absent a contract
provision authorizing that recovery.
• The trial court knew what fees the arbitrator had already awarded Marshall.
The $60,000 award to Marshall was substantial. As a fee award, the
arbitrator awarded one-third of the amount that Marshall had sought to
recover for his earnest money deposit. Whether Marshall was legally
entitled to a post-arbitration fee recovery, the trial court may have
concluded that the amount of fees already awarded was sufficient. Marshall
makes no argument that the trial court clearly abused its discretion by
deciding that a reasonable fee was what the arbitrator had already awarded.
He raises no argument that the trial court was wrong in that decision.
Thus, there were reasons why the trial court’s decision not to award post-arbitration
fees fell into the zone of reasonable disagreement, making it a decision within the trial
court’s discretion.
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We overrule Marshall’s sole issue in his appeal.
IV. Conclusion
Having overruled Parkview’s two issues and Marshall’s single issue, we affirm
the order granting Marshall’s motion to confirm the arbitration award.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: February 22, 2024
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