Joe L. Ayala v. First Community Bank, N.A., C.C. Deluxe Properties, LTD., and Ace B. Walker, Individually--Appeal from 148th District Court of Nueces County

NUMBER 13-06-00505-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

JOE L. AYALA, Appellant,

 
v.

FIRST COMMUNITY BANK, N.A.,

C.C. DELUXE PROPERTIES, LTD.,

AND ACE B. WALKER, INDIVIDUALLY , Appellees.

 
On appeal from the 148th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Chief Justice Valdez

In this restricted appeal, appellant, Joe L. Ayala ("Ayala"), seeks to reverse a final judgment premised upon an arbitrator's award. By two issues, Ayala contends that the trial court erred because it failed to enter a judgment reflecting the arbitrator's award and because it entered a judgment without providing him notice. We reverse and remand.

 

I. BACKGROUND

Ayala filed suit against appellees, First Community Bank, N.A., C.C. Deluxe Properties, L.T.D., and Ace B. Walker, for breach of fiduciary duty, fraud, and negligent misrepresentation stemming from a prospective real estate transaction. First Community Bank moved to refer the matter to arbitration pursuant to an arbitration agreement it had with Ayala. Although the record does not contain an order compelling arbitration, it does contain a motion for entry of judgment filed by C.C. Deluxe Properties and Ace Walker. The motion for entry of judgment had as an attachment an arbitrator's award and requested that the trial court enter the award as the judgment of the court.

The arbitrator's award recited the procedural history of the case and the evidence presented at arbitration. It also contained the following provisions:

3. The decision of the Arbitrator is that Joe Ayala takes nothing from First Community Bank, N.A., CC Deluxe Properties, Ltd., or Ace Walker.

 

4. Attorney's fees and expenses shall be borne by the parties incurring the same.

 

5. The administrative fees and expenses of the American Arbitration Association ("the Association") totaling $12,300.00, and the compensation and expenses of the Arbitrator totaling $11,689.86, shall be borne equally by all parties. Therefore, First Community Bank, N.A. shall reimburse Joe L. Ayala the sum of $1,100.89, representing that portion of said fees and expenses in excess of the apportioned cost previously incurred by Joe L. Ayala. CC properties Ltd. and Ace Walker shall reimburse Joe L. Ayala the sum of $7,998.22, representing that portion of said fees and expenses in excess of the apportioned costs previously incurred by Joe L. Ayala, upon demonstration by Joe Ayala that these incurred costs have been paid.

 

On March 14, 2006, the trial court signed a final judgment. The final judgment reads in its entirety, "The above-styled and numbered cause having been submitted to arbitration and an award made in that arbitration, IT IS ORDERED that all parties take nothing by this suit. Costs are taxed to the party incurring same. This is a final, appealable order." The final judgment does not mention paragraphs four and five of the arbitrator's award.

On August 25, 2006, Ayala filed a motion for entry of final judgment on arbitration award or, alternatively, motion to modify purported final judgment. No action was taken on Ayala's motion. He filed a notice of restricted appeal on September 12, 2006. This restricted appeal ensued.

II. DISCUSSION

By his first issue, Ayala contends that the trial court erred by failing to enter a judgment reflecting the arbitrator's award. Ayala argues that he did not participate in the hearing where the final judgment was entered and that error is apparent on the face of the record because the trial court's judgment did not provide for the reimbursement of fees he incurred.

To obtain relief through a restricted appeal, Ayala must establish that: (1) he filed notice of restricted appeal within six months after the judgment was signed; (2) he was a party to the underlying suit; (3) he did not participate in the hearing that resulted in the judgment and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004).

A review of the record reveals that Ayala filed his notice of restricted appeal within six months after the judgment was signed and that he was the plaintiff in the underlying suit. The final judgment is silent as to who attended the hearing when the judgment was signed. Additionally, there were no timely post-judgment motions. We are, therefore, left to ascertain whether there is error apparent on the face of the record.

In the instant case, ascertaining error on the face of the record involves determining whether the trial court properly confirmed the arbitrator's award. We review the trial court's decision to confirm the arbitrator's award de novo. Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 250 (Tex. App.-Houston [14th Dist.] 2003, pet. denied).

A trial court may set aside an arbitration award only in limited circumstances; absent specific common-law or statutory grounds for vacating, modifying, or correcting an award, the reviewing court must confirm the award. Tex. Civ. Prac. & Rem. Code Ann. 171.087 (Vernon 2005); L.H. Lacy Co. v. City of Lubbock, 559 S.W.2d 348, 351-52 (Tex. 1977). On granting an order that confirms an award, the judgment should conform to the award. See Tex. Civ. Prac. & Rem. Code Ann. 171.092(a) (Vernon 2005).

In the instant case, paragraph five of the arbitrator's award divides administrative expenses between parties and provides for reimbursement to Ayala provided that he shows proof of payment. The trial court's order is silent as to the provisions of paragraph five. It, therefore, does not conform to the arbitrator's award and reveals an error that is apparent on the face of the record. See id. Ayala's first issue is sustained. (1)

III. CONCLUSION

We reverse and remand the case to the trial court for entry of a judgment conforming to the arbitrator's award.

ROGELIO VALDEZ,

Chief Justice

 

Memorandum Opinion delivered and filed

this the 15th day of November, 2007.

1. This relieves us from having to address Ayala's second issue, for its resolution would not further affect the outcome of this appeal. Tex. R. App. P. 47.1.