PATE & PATE ENTERPRISES, INC. v. SOUTHLAND CONTRACTING, INC.--Appeal from 105th District Court of Nueces County

    NUMBER 13-01-837-CV

    COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTIBEDINBURG

PATE & PATE ENTERPRISES

INC., Appellant,

v.

  SOUTHLAND CONTRACTING, INC. Appellee.

On appeal from the 105th District Court of Nueces County, Texas.

O P I N I O N

Before Justices Hinojosa, Ya ez, and Castillo

  Opinion by Justice Ya ez

Appellant, Pate & Pate Enterprises, Inc. (APate & Pate@), brings this appeal following the trial court=s confirmation of an arbitrator=s award in favor of appellee, Southland Contracting, Inc. (ASouthland@). We affirm.

Facts

Originally, Southland sued Pate & Pate for breach of contract and other causes of action arising from a construction subcontract between the two parties. The substantive issues in the suit were arbitrated pursuant to the underlying contract. On July 18, 2001, the arbitrator entered an award in favor of Southland for the principal sum due, unpaid retainage, interest, attorney=s fees, and expenses.

On September 4, forty-eight days after the award, Southland filed a motion seeking confirmation of the award and attorney=s fees in connection with the motion. Pate & Pate filed a response, but did not move to vacate, correct, or modify the award. After a telephone hearing on the motion on September 17, sixty-one days after the award, the trial court signed an order confirming the award and assigning Southland $500 in attorney=s fees related to the motion to confirm.

Pate & Pate filed a timely request for findings of fact and conclusions of law. Later, it filed a timely motion for new trial asking the court to allow ninety days after the award in which to file a motion to vacate the award. However, nowhere in the motion for new trial did Pate & Pate ask that the award be vacated, corrected, or modified. After receiving no order from the court regarding the motion for new trial or request for findings and conclusions, Pate & Pate filed a notice of past due findings of fact and conclusions of law. The court never filed such findings and conclusions, and the motion for new trial was overruled by operation of law. This appeal ensued.

Analysis

By its first point of error, Pate & Pate contends that the trial court=s failure to file findings and conclusions regarding confirmation of the arbitrator=s award harmed its prosecution of this appeal because it has been deprived of the reason supporting the ruling. We disagree.

First, the civil practice and remedies code provides, A[u]nless grounds are offered for vacating, modifying, or correcting an award under Section 171.088 or 171.091, the court, on application of a party, shall confirm the award.@ Tex. Civ. Prac. & Rem. Code Ann. ' 171.087 (Vernon Supp. 2002) (emphasis added). Here, Pate & Pate did not offer grounds for vacating, modifying, or correcting the award. Therefore, after Southland filed its motion to confirm the award and that motion went unchallenged, the court was directed by the above-quoted statute to confirm the award. Tex. Civ. Prac. & Rem. Code Ann. ' 171.087 (Vernon Supp. 2002). By failing to offer grounds for vacating, modifying, or correcting the award, appellant waived any opportunity to challenge the basis for the trial court=s decision.

Second, when Aappellant needed no guesswork to determine why the [court] ruled as [it] did,@ and the facts are undisputed, as is the situation here, appellant could not have been harmed by the trial court=s failure to file findings and conclusions. Kuo Kong Ko v. Pin Ya Chin, 934 S.W.2d 839, 842 (Tex. App.BHouston [14th Dist.] 1996, no writ).

For these reasons, we conclude (1) appellant did not need to guess why the court did not grant its request for findings and conclusions, and (2) appellant was not harmed by the court=s failure to file findings and conclusions. Pate & Pate=s first point of error is overruled.

By its second point of error, appellant contends that the trial court should not have confirmed the arbitration award prior to the expiration of ninety days after a copy of the award was delivered to the appellant. Again, we disagree.

Pate & Pate cites section 171.088 of the civil practices and remedies code, which states, A[a] party must make an application [to vacate the arbitration award] under this section not later than the 90th day after the date of delivery of a copy of the award to the applicant.@ Tex. Civ. Prac. & Rem. Code Ann. ' 171.088(b) (Vernon Supp. 2002). Pate & Pate argues that sections 171.087 and 171.088, when read together, require that either party wait ninety days before applying to confirm the arbitration award. This argument was rejected in City of Baytown v. C.L. Winter, Inc., 886 S.W.2d 515 (Tex. App.BHouston [1st Dist.] 1994, writ denied). There, the motion to confirm the award was filed five days after the award was signed. Id. The appellant in that case filed an objection on the basis that the motion was premature and sought to have the award vacated. Id. In rejecting the argument that the request for confirmation was premature, the court of appeals cited the following language from the second circuit:

[N]otice of a motion to vacate an award must be served within three months after the award is filed or delivered, but there is nothing in such requirement to suggest that the winning party must refrain during that period from exercising the privilege . . . to move Aat any time@ within the year [to confirm the award].

. . . As we understand the statute, a motion to confirm puts the other party to [its] objections.

Id. (regarding provisions of the Federal Arbitration Act similar to those in the Texas General Arbitration Act) (citing The Hartbridge, 57 F.2d 672, 673 (2d Cir. 1932), cert. denied, 288 U.S. 601 (1933)). We agree with this analysis and hold that sections 171.087 and 171.088 do not require Southland to wait ninety days to move for confirmation of the award. Tex. Civ. Prac. & Rem. Code Ann. '' 171.087, 171.088 (Vernon Supp. 2002). Pate & Pate=s second point of error is overruled.

By its third point of error, Pate & Pate contends the trial court should not have awarded Southland attorney=s fees in connection with the motion to confirm. We disagree. A court=s award of attorney=s fees will not be overturned unless it constitutes an abuse of discretion. See Edwin M. Jones Oil Co. v. Pend Oreille Oil & Gas Co., 794 S.W.2d 442, 449 (Tex. App.BCorpus Christi 1990, writ denied) (in context of declaratory judgment action). Here, the contract between the parties states that Athe prevailing party shall recover from the other reasonable attorneys [sic] fees . . . in connection with . . . any arbitration.@ Accordingly, the arbitrator included an amount for attorney=s fees and expenses in the total award. Texas courts recognize that A[c]onfirmation of an arbitration award is part and parcel of the arbitration process.@ Kline v. O=Quinn, 874 S.W.2d 776, 784 (Tex. App.BHouston [14th Dist.] 1994, writ denied) (supp. op. on reh=g). In view of the parties= agreement that the prevailing party recover attorney=s fees in connection with arbitration and that confirmation of the award is part of the arbitration process, we hold that the trial court properly granted attorney=s fees to appellee in connection with the motion to confirm. See id. Pate & Pate=s third point of error is overruled.

We have considered all of appellant=s arguments, and they are all overruled. The trial court=s judgment is affirmed.

LINDA REYNA YA EZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

14th day of Novmber, 2002.