                              Fourth Court of Appeals
                                    San Antonio, Texas
                                            OPINION

                                        No. 04-18-00465-CV

                                       Jaydeep SHAH, M.D.,
                                             Appellant

                                                 v.

                                   STAR ANESTHESIA, P.A.,
                                          Appellee

                     From the 224th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2018-CI-04393
                            Honorable Michael E. Mery, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice
Concurring Opinion by: Liza A. Rodriguez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Patricia O. Alvarez, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: May 22, 2019

AFFIRMED

           In this arbitration dispute, Appellant Jaydeep Shah, M.D., appeals the trial court’s

confirmation of an arbitration award in favor of Appellee Star Anesthesia, P.A. and the denial of

Shah’s motion to vacate the arbitration award.

           In 2007, Shah entered into a Professional Services Agreement with Star Anesthesia to

perform anesthesia services and became a partner and shareholder of Star Anesthesia. The

agreement contained a binding arbitration agreement. On December 30, 2016, Star Anesthesia

terminated its employment agreement with Shah. The parties submitted their dispute to binding
                                                                                                  04-18-00465-CV


arbitration pursuant to their agreement. After a contested hearing, the arbitrator issued a final

award in Star Anesthesia’s favor.

        Star Anesthesia filed a motion to confirm the arbitration award; and Shah subsequently

filed a motion to vacate. On June 12, 2018, after hearing arguments, the trial court confirmed the

arbitration award, denied Shah’s motion to vacate, and entered final judgment.

        On appeal, Shah contends: (1) the arbitrator improperly considered and ruled on evidence

not raised or pled by Star Anesthesia; (2) the arbitrator improperly failed to find Shah a prevailing

party on Star Anesthesia’s counterclaim, and therefore improperly awarded attorney’s fees and

costs only to Star Anesthesia; (3) the awarded attorney’s fees failed to distinguish between fees

spent to defend the claim and those spent to advance counterclaims; and (4) the arbitrator’s

attorney’s fees award is not supported by either the arbitration clause or the Federal Arbitration

Statute. We affirm the trial court’s judgment.

                                          FACTUAL BACKGROUND 1

A.      The Professional Services Agreement

        In November of 2007, Shah entered into a Professional Services Agreement with Star

Anesthesia to provide anesthesiology services. The agreement required Shah to “devote [his] time

and loyalty to the Association.” Shah was further prohibited from “contract[ing] with, be[ing]

employed by, or otherwise practic[ing] anesthesiology except with the Association unless

otherwise authorized by the Board of Directors of the Association.”

        As part of the agreement, Star Anesthesia provided management and administrative

services to Shah and its other physicians. Star Anesthesia was also the exclusive provider of

anesthesia services to Baptist Health System. Star Anesthesia, Baptist Health System, and Shah


1
 We note our recitation of the facts pertaining to the Professional Services Agreement, contract with Baptist Health
System, and discovery dispute are derived from the arbitrator’s Final Award.


                                                       -2-
                                                                                     04-18-00465-CV


entered into a contract in which Shah received guaranteed collections of $500,000.00 per year. In

2012, Star Anesthesia’s contract with Baptist Health System was amended; Shah was not a party

to the amended contract.       Shah, however, continued to serve as the full-time pediatric

anesthesiologist and benefit from the guaranteed collections “despite not [being] specifically

identified as the intended beneficiary of [the contract].”

       In November 2016, after negotiations, Star Anesthesia and Baptist Health System entered

a contract eliminating the previous $500,000.00 guaranteed collections. Shah was not informed

of the change prior to the new contract taking effect on December 1, 2016.

       Shah filed suit alleging multiple claims, including breach of contract, breach of fiduciary

duty, fraud, and tortious interference. Shah sought recovery of attorney’s fees and costs. Star

Anesthesia filed a general denial and asserted multiple affirmative defenses, and counterclaims for

breach of contract, breach of fiduciary duty, and fraud by nondisclosure.

B.     Discovery Dispute

       A hearing was held before the arbitrator in October 2017 regarding whether the written

minutes taken during a December 7, 2016 Baptist Health System Department of Pediatric

Medicine Meeting were discoverable. Shah argued the minutes were not discoverable “because

they were privileged as minutes of a medical peer review.” Star Anesthesia countered the minutes

should be “discoverable because they likely would shed light on whether (l) Dr. Shah made certain

statements at the meeting, and (2) whether those statements gave rise to his termination for cause

under the moral turpitude provision in his employment agreement.”

       The arbitrator ordered the minutes withheld.

       When the matter was called for Final Hearing before the arbitrator, Shah was ordered to

testify regarding statements he made during the December 7, 2016 peer review meeting. The

arbitrator designated the testimony as “highly confidential” under the existing protective order. In


                                                 -3-
                                                                                       04-18-00465-CV


response to his having to testify to the meeting, Shah urged that he be allowed to use the written

minutes he previously argued should be “withheld from discovery.” Star Anesthesia argued unfair

surprise and the arbitrator did not allow the minutes into evidence.

         The arbitrator’s award specifically provided the minutes were not considered in the Final

Award.

C.       Arbitrator’s Award

         On March 6, 2018, the arbitrator filed a Final Award providing as follows:

         The arbitrator found in favor of Star Anesthesia and against Shah on Shah’s breach of

contract for, inter alia, the following reasons:

     •   Shah was not entitled to participate in the negotiations or notice of negotiations
         with Baptist Health System.
     •   Shah’s comments, “wearing of two hats, and the actions he took in furtherance of
         those dueling loyalties, constituted a conflict of interest, created a firestorm among
         the surgeons, and resulted in what became overwhelming evidence of conduct that
         would bring [Star Anesthesia] into public disrepute.”
     •   “Star [Anesthesia] established, by a preponderance of the evidence, that it had
         sufficient justification to terminate Dr. Shah for cause—moral turpitude—without
         relying upon statements [Shah] made at the December 7 meeting.”
     •   Dr. Shah admitted in cross-examination that he had been afforded all required due
         process.

         The arbitrator also found in favor of Star Anesthesia and against Shah on discrimination

under 42 U.S.C. § 1981 claims and that Shah failed to prove his claims for breach of fiduciary

duty, fraud, and tortious interference.

         Except for the affirmative defense of justification, the arbitrator did not consider Star

Anesthesia’s affirmative defenses “because they were moot in view of the adverse rulings on

Dr. Shah’s claims.”

         On the other hand, the arbitrator held the evidence conclusively established Star Anesthesia

had actual notice that Shah was serving as System-wide Medical Director at Baptist Health



                                                   -4-
                                                                                     04-18-00465-CV


System; however, none of the testifying witnesses knew Shah was being compensated for such

role. The arbitrator held the evidence “established that Star [Anesthesia] considered Dr. Shah’s

involvement in the day-to-day affairs of [Baptist Health System] to be of value to Star

[Anesthesia]. For these reasons, [Star Anesthesia] failed to prove its breach of contract claim by

a preponderance of the evidence.” The arbitrator also concluded Star Anesthesia failed to prove

any fiduciary duty existed or was breached or that Shah concealed the existence of a compensated

position with Baptist Health System that violated the terms of his Professional Services Agreement

with Star Anesthesia.

       Pursuant to Rule 47(d) of the American Arbitration Association’s Commercial Rules, the

arbitrator awarded Star Anesthesia $84,819.00 in attorney’s fees and $11,586.12 in arbitration

costs through the arbitration’s Final Hearing. The arbitrator also awarded Star Anesthesia, as the

prevailing party, $24,485.56 in administrative fees and expenses of the AAA, plus the

compensation and expenses of the arbitrator.

D.     Post Arbitration Hearing

       On March 9, 2018, Star Anesthesia filed an Application to Confirm Arbitration Award.

       On April 20, 2018, Shah filed a motion to vacate the arbitration award, in part, alleging the

arbitrator erroneously failed to consider evidence based on privilege. Shah argued the arbitrator

failed to hear evidence pertinent to the material in controversy based on privilege; but permitted

Star Anesthesia to offer one-sided, unfair representation of the evidence through affidavits. This

information, Shah argued, was central to his case.

       On June 12, 2018, the trial court heard argument on the motions. The trial court denied

Shah’s motion to vacate the arbitration award, confirmed the arbitration award, and entered final

judgment.




                                               -5-
                                                                                     04-18-00465-CV


       As stated, Shah raises several issues on appeal: (1) the arbitrator improperly considered

and ruled on evidence not raised or pled by Star Anesthesia; (2) the arbitrator improperly failed to

find Shah a prevailing party on Star Anesthesia’s counterclaim and therefore improperly awarded

attorney’s fees and costs only to Star Anesthesia; (3) the awarded attorney’s fees failed to

distinguish between fees spent to defend the claim and those spent to advance counterclaims; and

(4) the arbitrator’s attorney’s fees award is not supported by either the arbitration clause or the

Federal Arbitration Statute.

       We turn first to Shah’s appellate issues based on evidentiary matters: issue number one—

the arbitrator improperly considered and ruled on evidence not raised or pled by Star Anesthesia,

and issue number three—the attorney’s fees award is not supported by the evidence.

                        EVIDENTIARY ISSUES BEFORE THE ARBITRATOR

A.     Argument of the Parties

       Star Anesthesia contends that because the appellate record does not contain a transcript of

the arbitration hearing, this court may not review any of the evidentiary issues raised by Shah.

       Shah counters that Rule 34.6 of the Texas Rules of Appellate Procedure does not require a

complete transcript to review an arbitration award; the rule requires only a sufficient record as to

each appellate issue. See O’Grady v. Nat’l Union Fire Ins. Co., 506 S.W.3d 121, 127 (Tex. App.—

Corpus Christi 2016, pet. denied).

B.     Presumptions and Burdens Regarding Appellate Records

       “Subjecting arbitration awards to judicial review adds expense and delay, thereby

diminishing the benefits of arbitration as an efficient, economical system for resolving disputes.

CVN Grp., Inc. v. Delgado, 95 S.W.3d 234, 238 (Tex. 2002). To ensure arbitration awards are

afforded the same effect as “the judgment of a court of last resort, ‘[a]ll reasonable presumptions

are indulged in favor of the award, and none against it.’” Id. (quoting City of San Antonio v.


                                                -6-
                                                                                   04-18-00465-CV


McKenzie Constr. Co., 136 Tex. 315, 150 S.W.2d 989, 996 (1941)). Therefore, “[a] party seeking

to vacate an arbitration award bears the burden of presenting a complete record that establishes

grounds for vacating the award.” Novoa v. Niramontes, 553 S.W.3d 45, 53 (Tex. App.—El Paso

2018, no pet.); accord Statewide Remodeling, Inc. v. Williams, 244 S.W.3d 564, 569 (Tex. App.—

Dallas 2008, no pet.); GJR Mgmt. Holdings L.P. v. Jack Raus, Ltd., 126 S.W.3d 257, 263–64 (Tex.

App.—San Antonio 2003, pet. denied). “When there is no transcript of the arbitration hearing, the

appellate court will presume the evidence was adequate to support the award.” GJR Mgmt.

Holdings, 126 S.W.3d at 262–63.

C.     O’Grady v. Nat’l Union Fire Ins. Co.

       Shah acknowledges “the general rule is that without an arbitration transcript, we must

presume the arbitration evidence adequately supported an award.” Centex/Vestal v. Friendship W.

Baptist Church, 314 S.W.3d 677, 684. (Tex. App.—Dallas 2010, pet. denied). On appeal, Shah

contends:

       the arbitrator issued an award that was not based on the pleadings or the evidence
       by using the record that was presented at the Motion to Vacate and this is entirely
       consistent with recent Texas case law on the issue that makes it clear that the
       absence of a transcript merely limits review, it does not foreclose it.

Relying on O’Grady v. Nat’l Union Fire Ins. Co., Shah argues that “application of the general rule

merely limits rather than entirely forecloses our consideration of whether the arbitrator exceeded

his authority in this instance.” 506 S.W.3d at 127.

       The appellate record in O’Grady included the contract at issue and the case management

order setting out the deadlines for the motions for summary disposition. Id. However, because

the appellate record did not include motions, exhibits, or affidavits, the record did not contain

sufficient evidence to determine the ultimate issue raised—whether “the arbitration panel

exceed[ed] the power given to them at summary judgment by making fact-findings and deciding



                                               -7-
                                                                                    04-18-00465-CV


the issue of coverage.” Id. at 124, 127. Therefore, “based on O’Grady’s failure to provide an

arbitration transcript [the appellate court was] unable to determine whether the arbitration panel

exceeded their authority as provided to them in the arbitration agreement.” Id. at 127.

D.     Analysis

       Here, the appellate record contains the following:

       •   Star Anesthesia’s Application to Confirm Arbitration Award
       •   Shah’s Motion to Vacate Arbitration Award in Part and the attached exhibits
       •   Shah’s Original Answer
       •   Star Anesthesia’s Response to Shah’s Motion to Vacate and the attached exhibits
       •   Final Judgment
       •   Handwritten Notes by the Trial Court
       •   Shah’s Notice of Appeal

The record does not include a transcript of the arbitration hearing.

       Like in O’Grady, “[w]e are free to consider the documents regarding the arbitration hearing

that are part of our record.” See id. (holding appellate court could consider “the arbitration

agreement found within the contract and the case management order, which set the deadlines for

the motions for summary disposition” which were provided as part of the appellate record). Shah

may not, however, rely on exhibits attached to the pleadings before the trial court, or more

specifically his Motion to Vacate, for evidentiary arguments. See id. Motions and pleadings are

not evidence. CHRISTUS Health Gulf Coast v. Carswell, 505 S.W.3d 528, 539–40 (Tex. 2016);

accord San Miguel v. City of Windcrest, 40 S.W.3d 104, 111 (Tex. App.—San Antonio 2000, no

writ). “Nor are documents attached to pleadings evidence.” Ceramic Tile Int’l, Inc. v. Balusek,

137 S.W.3d 722, 725 (Tex. App.—San Antonio 2004, no pet.).

       “Our duty, as an appellate court, is to consider only the testimony adduced and the evidence

tendered and/or admitted at the time of trial.” Vanscot Concrete Co. v. Bailey, 862 S.W.2d 781,

783 (Tex. App.—Fort Worth 1993), aff’d, 894 S.W.2d 757; see also Noble Exploration, Inc. v.


                                                -8-
                                                                                     04-18-00465-CV


Nixon Drilling, Co., 794 S.W.2d 589, 592 (Tex. App.—Austin 1990, no writ) (holding that

documents not introduced into evidence at trial may not be considered on appeal). Exhibits

attached to pleadings are not evidence in a case until the exhibits are properly introduced and

admitted by the presiding authority, whether an arbitrator or a trial court. See Balusek, 137 S.W.3d

at 725. Rule 34.6 of the Texas Rules of Appellate Procedure further provides the reporter’s record

consists of the transcript of the proceedings and the exhibits designated by the parties. See TEX.

R. APP. P. 34.6(a).

       Whether the arbitrator improperly considered and ruled on evidence presented by Star

Anesthesia regarding the minutes of the December 7, 2016 meeting, and specifically which fees

the trial court used to calculate the attorney’s fees award, necessarily raises questions of fact-

finding based on motions, pleadings, and multiple days of testimony and evidence. In fact, Shah

argues that the arbitrator “went completely outside the pleadings and beyond the evidence” and

that “there was no proof offered to any conduct prior to December 7, 2016” to “arrive[] at

conclusions wholly unsupported by any evidence.” However, without a record, this court has “no

way of judging whether the misconduct in fact occurred,” GJR Mgmt. Holdings, 126 S.W.3d at

263, and whether the arbitrator exceeded its authority, see O’Grady, 506 S.W.3d at 127. See also

Statewide Remodeling, 244 S.W.3d at 568 (reiterating counsel’s statements regarding what

occurred at the hearing do not substitute for a record of those proceedings).

       In light of this court’s previous holding, when “we have no record to support these

allegations . . . we have no way of judging whether the misconduct in fact occurred.” GJR Mgmt.

Holdings, 126 S.W.3d at 263. Because Shah failed to meet his burden to bring forward a record

of the arbitration hearing, the record lacks sufficient evidence to support Shah’s claims of

misconduct and mistake. Novoa, 553 S.W.3d at 53; Statewide Remodeling, 244 S.W.3d at 569;

GJR Mgmt. Holdings, 126 S.W.3d at 262–63.


                                                -9-
                                                                                    04-18-00465-CV


       We therefore overrule Shah’s appellate issues one and three.

       We turn next to Shah’s argument regarding whether the trial court erred in awarding

attorney’s fees only to Star Anesthesia.

                                       PREVAILING PARTY

A.     Standard of Review

       We apply a de novo standard in reviewing a trial court’s decision to confirm or vacate an

arbitration award; however, judicial review of an arbitration award is extraordinarily narrow. East

Tex. Salt Water Disposal Co. v. Werline, 307 S.W.3d 267, 271 (Tex. 2010). A party seeking to

vacate an arbitration award “may avoid confirmation only by demonstrating a ground expressly

listed in [Texas Civil Practice and Remedies Code] section 171.088.” Hoskins v. Hoskins, 497

S.W.3d 490, 495 (Tex. 2016) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 171.088(a)(3)(A)

(requiring proof “the arbitrators exceeded their powers”)).

B.     Arguments of the Parties

       Shah contends that although Star Anesthesia prevailed on some claims, Shah was a

prevailing party on Star Anesthesia’s counterclaim. The arbitrator therefore erred in failing to

award Shah attorney’s fees and costs on the counter claim. Star Anesthesia contends Shah seeks

to rewrite the terms of the parties’ agreement.

C.     Prevailing Party

       Because the arbitration clause contained within the Professional Services Agreement does

not define “prevailing party,” we must determine what is meant by this term. When interpreting a

contractual attorney’s fee provision in which the “prevailing party” term is left undefined, an

appellate court “presume[s] the parties intended the term’s ordinary meaning.” Intercont’l Grp.

P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 653 (Tex. 2009) (citing Valence Operating

Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005)); see also Chevron Phillips Chem. Co. LP v.


                                                  - 10 -
                                                                                      04-18-00465-CV


Kingwood Crossroads, LP, 346 S.W.3d 37, 70 (Tex. App.—Houston [14th Dist.] 2011, pet.

denied) (noting that “contractual provision entitling a ‘prevailing party’ to recover attorneys’ fees

does not distinguish between successful prosecution and successful defense of a claim”). In

Intercontinental Group, the Texas Supreme Court explained, “to prevail, a claimant must obtain

actual and meaningful relief, something that materially alters the parties’ legal relationship.” 295

S.W.3d at 652. In other words, the prevailing party “must gain something.” Id.

D.     Analysis

       The Final Award states that Star Anesthesia “failed to prove” its breach of contract, breach

of fiduciary duty, and fraud by nondisclosure claims. Shah contends he was, therefore, the

prevailing party on each of these counterclaims and was therefore entitled to attorney’s fees

pursuant to Rule 47(d). Shah has failed to provide any support or authority for his argument or

how Star Anesthesia’s failure to prevail on its counterclaims (1) materially altered the legal

relationship between Shah and Star Anesthesia or (2) how Shah benefitted or what Shah gained

from Star Anesthesia’s failure to prevail. See id. Accordingly, we conclude Shah was not a

prevailing party and the trial court did not err in failing to vacate the arbitration award as to the

arbitrator’s failure to award Shah attorney’s fees.

       Lastly, we turn to Shah’s argument regarding the statutory support for the award of

attorney’s fees.

                   ATTORNEY’S FEES UNDER THE ARBITRATION AGREEMENT

A.     Arguments of the Parties

       Shah argues the attorney’s fees are not supported by either the arbitration agreement or the

Federal Arbitration Statute. Star Anesthesia contends the parties contracted for the application of

the American Arbitration Association’s Commercial Rules which authorizes the arbitrator to

assess attorney’s fees and expenses in the arbitration award.


                                                - 11 -
                                                                                       04-18-00465-CV


B.     Attorney’s Fees under the American Arbitration Association

       Rule 47(d)(ii) of the American Arbitration Association provides that an arbitrator’s award

may include “an award of attorneys’ fees if all parties have requested such an award or it is

authorized by law or their arbitration agreement.” See AAA, Commercial Arbitration Rules, Rule

47(d)(ii). The arbitration clause in the parties’ agreement provided as follows:

       27. Arbitration. All disputes between the parties hereto in relation to this
       Agreement, whether as to the construction or operation hereof or the respective
       rights and liabilities hereunder, shall be decided by binding arbitration in San
       Antonio, Texas pursuant to the commercial arbitration rules of the American
       Arbitration Association.

C.     Analysis

       The arbitrator’s authority to decide matters is derived from the arbitration agreement. See

Townes Telecommunications, Inc. v. Travis, Wolff & Co., L.L.P., 291 S.W.3d 490, 493 (Tex.

App.—Dallas 2009, pet. denied). Here, the arbitration clause provides the commercial arbitration

rules of the American Arbitration Association will govern.

       As a prerequisite, Rule 47(d) requires all parties request attorney’s fees. Here, the arbitrator

made such a finding. The issue of attorney’s fees was clearly submitted to the arbitrator, and the

arbitrator ruled pursuant to the contractual provision and statute allowing for attorney’s fees when

reaching the issue of attorney’s fees. Under these circumstances, we cannot conclude the arbitrator

exceeded its authority by awarding attorney’s fees to Star Anesthesia. See D.R. Horton-Texas,

Ltd. v. Bernhard, 423 S.W.3d 532, 535 (Tex. App.—Houston [14th Dist.] 2014, pet. denied);

accord Pasadera Builders, LP v. Hughes, No. 04-17-00021-CV, 2017 WL 6345218, at *4 (Tex.

App.—San Antonio Dec. 13, 2017, pet. denied). Accordingly, we overrule Shah’s fourth’s issue.

                                           CONCLUSION

       Having overruled each of Shah’s issues on appeal, we affirm the trial court’s judgment.

                                                   Patricia O. Alvarez, Justice


                                                - 12 -
