Teleometrics International, Inc. v. Hall

ORDER ON MOTION FOR REHEARING

Appellants, Teleometrics International, Inc. and Jeffrey A. Goforth, filed a motion for rehearing requesting that this Court set aside its judgment and opinion of December 28,1995. In three points of error, appellants argue that this Court erred in affirming the judgment of the trial court which confirmed an arbitration award issued in appellee’s favor by the American Arbitration Association. Although we deny the motion for rehearing, we supplement our original opinion with the following.

In point one, appellants claim that this Court erred in finding that they failed to file *193a timely application to vacate the arbitration award within the 90-day period mandated by article 237 of the Texas General Arbitration Act.1 This point was addressed thoroughly in the original opinion and will not be readdressed on rehearing.

In points two and three, appellants complain that this Court erroneously ignored their points of error one and two in their brief on appeal2 to reach the “timely application to vacate” issue. In their motion for rehearing, they argue that it was necessary for this Court to first determine whether the parties had a binding and enforceable arbitration agreement under article 224 of the Texas General Arbitration Act3 in order to affirm the trial court’s judgment—regardless of the timeliness of any pleading to vacate the award. They also contend that in order to establish his right to confirmation of the arbitration award, appellee was required to present summary judgment evidence of such an agreement.

Although we determined that the agreement to arbitrate was binding on the parties before reaching the timeliness issue, appellants are correct that our opinion failed to address this finding. We do so now. Standard of Review

Former article 224 of the Texas General Arbitration Act states that a court shall refuse to enforce an agreement or contract provision to submit a controversy to arbitration if the court finds it was unconscionable at the time the agreement or contract was entered. Common law allows a trial court to set aside an arbitration award only if the decision is “tainted with fraud, misconduct, or gross mistake as would imply bad faith and failure to exercise honest judgment.” Brozo v. Shearson Lehman Hutton, Inc., 865 S.W.2d 509, 510 (Tex.App.—Corpus Christi 1993, no writ). The party which seeks to vacate an arbitrator’s award has the burden in the trial court of bringing forth a complete record and establishing any basis that would warrant vacating the award. Kline v. O’Quinn, 874 S.W.2d 776, 790 (Tex. App.—Houston [14th Disk] 1994, writ denied) (op. on reh’g). Because arbitration is favored as a means of dispute resolution, courts indulge every reasonable presumption in favor of upholding the award. Brozo, 865 S.W.2d at 510; Wetzel v. Sullivan, King & Sabom, P.C., 745 S.W.2d 78, 81 (Tex.App.—Houston [1st Dist.] 1988, no writ).

Appellants claim that this Court’s review is filtered through the summary judgment standard. See Louisiana Natural Gas v. Bludworth Bond Shipyard, Inc., 875 S.W.2d 458, 462 (Tex.App.—Houston [1st Disk] 1994, writ denied); Brozo, 865 S.W.2d at 510. We disagree. In Louisiana Natural Gas, this Court was reviewing the trial court’s granting of a motion for summary judgment on the defendant’s counterclaim for the balance due under an amended arbitration award. 875 S.W.2d at 450. Similarly in Brozo, the appellant was appealing the trial court’s granting of summary judgment confirming an arbitration award in favor of appellee. 865 S.W.2d at 509. By contrast, in this case, appellee filed a motion to confirm the arbitration award, not a motion for summary judgment; thus, we decline to require that the summary judgment standard applies.

Evidence of agreement to “binding” arbitration

On original appeal, appellants contended that appellee provided no proof that the par*194ties agreed that a judgment of the court would be entered on any arbitration award or that the award would be binding. They argued that proof of an agreement to arbitrate is not proof of an agreement that an arbitration award is enforceable by entering judgment thereon.

First, we note that the agreement between the parties met the requirements of former article 224 of the Texas General Arbitration Act for a valid arbitration agreement.4 Appellee presented to the trial court a written agreement (“the Integrated Agreement”) with a provision requiring that any unresolved disputes arising out of the agreement be “submitted and settled” by the American Arbitration Association. The agreement was executed by all parties to this cause of action.

Next, we find that the parties agreed to binding arbitration. Rule 47(c) of the American Arbitration Association’s Rules states that, “[P]arties to these rules shall be deemed to have consented that judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof.” Thus, by specifically agreeing to submit and settle any disputes arising out of the agreement to the American Arbitration Association, the parties agreed to binding arbitration.

Furthermore, all parties consented that a judgment could be entered by a trial court by virtue of participating in the arbitration proceedings without objection or revocation of agreement to arbitrate until after the award was rendered. See L.H. Lacy Co. v. City of Lubbock, 559 S.W.2d 348, 352 (Tex.1977) (parties are allowed to withdraw from arbitration agreements, but withdrawal must take place before rendition of an award); Massey v. Galvan, 822 S.W.2d 309, 314-16 (Tex.App.—Houston [14th Dist.] 1992, writ denied) (parties enter into a binding arbitration agreement where they do not attempt to withdraw from arbitration until after award has been rendered).

Validity of arbitration agreement as to Goforth

Appellants point out for the first time on motion for rehearing that former article 224(b) of the Texas General Arbitration Act, which was amended in 1979 and applicable when these contracts were signed, has certain requirements as to “individuals” which were not met in the “Integrated Agreement” between the three parties. Appellants claim that the arbitration clause was in direct violation of former article 224(b) as to Goforth because the agreement was neither approved nor signed by Goforth’s attorney.5 Because this argument was not raised by appellants before the arbitrator, the trial court, or in their brief on appeal, it has been waived.

Based on our findings that the parties had a valid and binding arbitration agreement under the Texas General Arbitration Act and that appellee presented evidence of such an agreement, we overrule appellants’ points of error two and three on motion for rehearing.

COHEN and TAFT, JJ., also participating.

. Tex.Rev.Civ.Stat.Ann. art. 237 (Vernon 1973) was applicable to this case. See Act of May 28, 1965, 59th Leg., R.S., ch. 689, § 1, 1965 Tex. Gen.Laws 1593, 1599, amended by Act of May 24, 1995, 74th Leg., R.S., ch. 588, § 1, 1995 Tex. Gen.Laws 3403, 3403, eff. Sept. 1, 1995, and redesignated as TexCivJPrac. a Rem.Code Ann. § 171.014 (Vernon Supp.1996) (the Uniform Arbitration Act).

. In their brief on appeal, appellants argued that (1) there was no summary judgment evidence of a binding arbitration agreement between the parties, and (2) that the award was incomplete and unenforceable.

. Tex.Rev.Civ.Stat.Ann. art. 224 (Vernon Supp. 1995) was applicable to this case. See Act of May 25, 1979, 66th Leg., R.S., ch. 704, § 1, 1979 Tex.Gen.Laws 1708, 1708, amended by Act of May 24, 1995, 74th Leg., R.S., ch. 588, § 1, 1995 Tex.Gen.Laws 3403, 3403, eff. Sept. 1 1995, and redesignated as Tex.Civ.Prac. & Rem.Code Ann. § 171.001 (Vernon Supp.1996) (the Uniform Arbitration Act).

. Former article 224 provided that, "[A] written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Act of May 25, 1979, 66th Leg., R.S., ch. 704, § 1, 1979 Tex.Gen.Laws 1708, 1708, amended by Act of May 24, 1995, 74th Leg., R.S., ch. 588, § 1, 1995 Tex.Gen.Laws 3403, 3403.

. Appellants also point out that the agreement was not signed by the attorneys for the other parties. However, the requirement of former article 224 that statutory arbitration agreements be signed by counsel to the parties was part of the 1966 through 1979 version of the statute, and has since been removed except in certain limited instances not applicable here. See Act of May 28, 1965, 59th Leg., R.S., ch. 689, § 1, 1965 Tex.Gen.Laws 1593, 1594, amended by Act of May 25, 1979, 66th Leg., R.S., ch. 704, § 1, 1979 Tex.Gen.Laws 1708, 1708 (applicable here), amended by Act of May 24, 1995, 74th Leg., R.S., ch. 588, § 1, 1995 Tex.Gen.Laws 3403, 3403, eft. Sept. 1, 1995, and redesignated as Tex.Civ.Prac. & Rem.Code Ann. § 171.001 (Vernon Supp. 1996) (the Uniform Arbitration Act).