Affirmed and Memorandum Opinion filed August 16, 2018.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-17-00373-CV

                        LONG LAKE, LTD., Appellant
                                       V.
                     BRIGETTE PILLITTERE, Appellee

                   On Appeal from the 240th District Court
                           Fort Bend County, Texas
                    Trial Court Cause No. 15-DCV-227922

                 MEMORANDUM                     OPINION

      In this case, a homebuilder appeals the trial court’s judgment confirming an
arbitration award after the homebuyer asserted claims relating to mold damage in
her home. The homebuilder complained in the trial court that the arbitrator had
exceeded his authority in violation of section 171.088(a)(3)(A) of the Texas Civil
Practice & Remedies Code by disregarding a limitation in a contractual provision.
But, the homebuilder failed to provide that court with a sufficient record of the
arbitration proceedings to assess the asserted ground for vacating the award. We
affirm.

                  I. FACTUAL AND PROCEDURAL BACKGROUND

      In late 2014, appellant Long Lake, Ltd. sold a new home and a home
warranty to appellee Brigette Pillittere. Roughly a year later, Pillittere sued Long
Lake in the district court, alleging that mold and other fungi infested her home, and
that Long Lake had refused to remediate the damage. Pillittere also alleged that
the home warranty expressly stated it would not take effect until she received a
warranty certificate and that she had not been provided with a warranty certificate.
Pillittere asserted claims for construction defects, common-law fraud, and
violations of the Texas Deceptive Trade Practices Act.

                                     Arbitration

      Long Lake appeared in the district-court lawsuit and moved to compel
arbitration under an arbitration provision in the parties’ Purchase Agreement or,
alternatively, under an arbitration provision in the StrucSure Express Limited
Warranty Long Lake had provided to Pillittere (“Warranty”), or under both.
Pillittere did not file a response to the motion, and the trial court signed an order
compelling arbitration. The trial court later signed an agreed order requiring the
parties to arbitrate all the claims raised in Pillettere’s pleadings and staying the
district-court suit pending completion of the arbitration.

                                 Arbitration Award

      The arbitrator awarded Pillittere various amounts totaling $178,184.57 and
provided reasons for his award (the “Award”). Our record contains scant details
about the arbitration. No party submitted a reporter’s record from any part of the
proceedings before the arbitrator. The only items filed in the trial court below
regarding the arbitration are (1) the Purchase Agreement, (2) the Award, (3) the

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“Home Enrollment Application” for the Warranty, and (4) the “Express Limited
Warranty Coverage Booklet” setting forth the terms of the Warranty.

                      Trial Court’s Confirmation of the Award

      After the arbitration, Pillittere asked the trial court to confirm the Award.
Long Lake opposed confirmation of the Award and asked the trial court to vacate
the Award under section 171.088(a) of the Texas Civil Practice and Remedies
Code because the arbitrator allegedly exceeded his powers by “disregard[ing]
contractual limitations of liability.” Long Lake asserted that under a contractual
provision the total amount that Pillittere may recover against Long Lake is
$174,814 and that the arbitrator exceeded his powers by ignoring this limitation
and awarding $178,184.57. This argument was the sole vacatur ground Long Lake
asserted in the trial court. The trial court confirmed the Award. Long Lake now
challenges that ruling in this appeal.

                                II. ISSUE PRESENTED

      In its sole issue on appeal, Long Lake complains that the trial court erred
because it failed to hold, under section 171.088(a)(3)(A), that the arbitrator
exceeded his powers when he awarded Pillittere an amount greater than $174,814,
in contravention of the governing arbitration provisions and a contractual
limitation-of-liability provision. In its application to vacate the Award, Long Lake
did not expressly state that it had asserted this contractual provision in the
arbitration proceedings or that Long Lake did not waive this provision during the
arbitration. Nonetheless, we presume, without deciding, that Long Lake preserved
error in the trial court and assigned error in this appeal on the vacatur ground that
the arbitrator exceeded his powers by awarding Pillittere an amount that exceeded
$174,814 in contravention of a limitation in a contractual provision.


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                                III. ANALYSIS
A.    Did Long Lake provide the trial court with a sufficient record of the
      arbitration to establish that the arbitrator exceeded his powers?

      As a threshold matter, we consider whether Long Lake satisfied its burden to
produce a complete record of the arbitration proceedings establishing its claimed
basis for vacating the Award.

      Texas courts give arbitration awards great deference and indulge every
reasonable presumption to uphold arbitrators’ decisions. CVN Group, Inc. v.
Delgado, 95 S.W.3d 234, 238 (Tex. 2002); Long Lake, Ltd. v. Heinsohn, No. 14-
09-00613-CV, 2010 WL 1379979, at *2 (Tex. App.—Houston [14th Dist.] Apr. 8,
2010, no pet.) (mem. op.). A non-prevailing party seeking to vacate an arbitrator’s
award bears the burden to produce a complete record of the arbitration proceedings
establishing the claimed basis for relief. See Long Lake, Ltd., 2010 WL 1379979,
at *2–3; Anzilotti v. Gene D. Liggin, Inc., 899 S.W.2d 264, 267 (Tex. App.—
Houston [14th Dist.] 1995, no writ). Absent a complete transcription of the
arbitration proceedings, we are to presume that adequate evidence supports the
arbitrator’s award. See Long Lake, Ltd., 2010 WL 1379979, at *2.

      In support of its application to vacate the Award, Long Lake attached only
four documents: (1) a copy of the Purchase Agreement, (2) a copy of the Award,
(3) a copy of the “Home Enrollment Application” for the Warranty, and (4) the
“Express Limited Warranty Coverage Booklet” setting forth the terms of the
Warranty. None of these documents were authenticated. Even though the Home
Enrollment Application and the Warranty were essential to Long Lake’s arguments
for vacatur, Long Lake did not submit any evidence in the trial court showing that

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either of these documents were submitted to the arbitrator. Neither party submitted
any pleadings, motions, testimony, or other evidence as to the matters presented in
the arbitration. No party submitted any transcription or reporter’s record of any
part of the arbitration proceedings.

      In Heinsohn, an unrelated case in which Long Lake challenged the trial
court’s judgment confirming an arbitration award, this court affirmed on the basis
that Long Lake had failed to provide a complete record of the arbitration
proceedings establishing its claimed basis for relief. Long Lake, Ltd., 2010 WL
1379979, at *2–4. In the Heinsohn case, Long Lake asserted that certain damage
components of the arbitration award were in manifest disregard of Texas law. Id.
at *1. Long Lake had submitted documents in the trial court in an attempt to show
the pleadings that had been filed in the arbitration and the documentary evidence
submitted by each side. Id. Long Lake also submitted an affidavit of one of its
attorneys describing the testimony of Heinsohn’s damage expert during the
arbitration. In today’s case, Long Lake offered even less than it did in Heinsohn.

      Long Lake did not provide the trial court below with any pleadings from the
arbitration or attempt to prove what evidence was submitted to the arbitrator.
Though Long Lake submitted the Award, the Award does not address whether
Long Lake argued in the arbitration that a contractual provision deprived the
arbitrator of the power to award Pillittere more than $174,814. Long Lake had the
burden to present the trial court with a complete record of the arbitration
proceedings establishing its asserted vacatur ground. See Long Lake, Ltd., 2010
WL 1379979, at *2–3. Long Lake did not satisfy this burden. See id.

      Because Long did not provide a complete transcription of the arbitration
proceedings, we presume that adequate evidence supports the Award, including
that the evidence gave the arbitrator the power to award Pillittere more than

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$174,814. See Long Lake, Ltd., 2010 WL 1379979, at *2–3 (stating that to review
an arbitration award to determine whether an arbitrator failed to apply exclusive
remedies, there must be a record of the arbitration proceedings).

      Long Lake alleges for the first time on appeal that the Warranty was
admitted into evidence during the arbitration hearing. Even presuming that the
Warranty was before the arbitrator, the absence of a complete transcription of the
arbitration proceedings prevents this court from conducting a meaningful review.
See id.

      In its reply brief, Long Lake suggests that Pillittere waived the right to assert
the insufficiency of Long Lake’s evidence in support of its vacatur request because
Pillittere did not raise this issue in the trial court. But, Long Lake bore the burden
to present the trial court with a complete record of the arbitration proceedings
establishing its asserted vacatur ground. See Long Lake, Ltd., 2010 WL 1379979,
at *2–4; Anzilotti, 899 S.W.2d at 267. Pillittere did not need to do anything in the
trial court to impose this burden on Long Lake or to trigger Long Lake’s obligation
to present a complete record of the arbitration, nor did any silence by Pillittere
relieve Long Lake of its burden. See id. Because Long Lake failed to carry this
burden, the trial court did not err in impliedly denying Long Lake’s request to
vacate the Award. See id.

B.    Did Long Lake preserve error on its argument (based on section
      17(3) of the Warranty) that it never agreed to allow the arbitrator
      to enter a monetary award in excess of $174,814?

      Long Lake points to section 17(3) of the Warranty, and claims the provision
strips the arbitrator of authority to “create, establish, or fix a monetary sum as an
award to any arbitrating party unless this is expressly agreed to” by the arbitrating
parties. Long Lake then asserts that it never agreed to allow the arbitrator to make

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an award in excess of $174,814. Long Lake did not make this argument in the trial
court.

         To the extent the argument is part of the vacatur ground addressed above,
then the trial court did not err in rejecting it for the same reasons outlined above.
To the extent Long Lake asserts this argument as an independent vacatur ground,
Long Lake waived this ground by failing to raise it in the trial court. See Ewing v.
Act Catastrophe-Texas L.C., 375 S.W.3d 545, 549 (Tex. App.—Houston [14th
Dist.] 2012, pet. denied). In any event, even if Long Lake had raised this argument
as an independent vacatur ground in the trial court, Long Lake failed to satisfy its
burden to present the trial court with a full record of the arbitration proceedings
showing the asserted vacatur ground, and therefore we presume that adequate
evidence supports the Award. For instance, we presume that sufficient evidence
showed that Long Lake agreed to allow the arbitrator to make an award in excess
of $174,814. See Long Lake, Ltd., 2010 WL 1379979, at *2–3.

                                    IV. CONCLUSION

         Long Lake failed to carry its burden to present the trial court with a
complete record of the arbitration proceedings establishing its asserted vacatur
ground. Therefore, we presume that adequate evidence supports the arbitrator’s
award and we do not analyze the merits of Long Lake’s vacatur argument. Having
concluded that the trial court did not err in impliedly denying Long Lake’s request
to vacate the Award, we overrule Long Lake’s sole appellate issue, and we affirm
the trial court’s final judgment.


                                        /s/       Kem Thompson Frost
                                                  Chief Justice

Panel consists of Chief Justice Frost and Justices Christopher and Jamison.

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