                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-17-00021-CV

                                   PASADERA BUILDERS, LP,
                                          Appellant

                                                 v.

                                            Todd HUGHES,
                                               Appellee

                       From the County Court at Law, Kendall County, Texas
                                   Trial Court No. 15-559CCL
                            Honorable Bill R. Palmer, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: December 13, 2017

AFFIRMED

           Pasadera Builders, LP appeals the trial court’s order granting Todd Hughes’s motion to

confirm an arbitration award and denying Pasadera’s motion to vacate a portion of the arbitration

award. Pasadera contends the trial court erred in refusing to vacate the portion of the arbitration

award finding neither party was a prevailing party entitled to attorney’s fees, expenses, and

arbitration costs under the arbitration agreement. We affirm the trial court’s order.
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                                            BACKGROUND

          Pasadera and Hughes entered into a construction contract pursuant to which Pasadera

constructed a custom-built home for Hughes. After the construction was completed, the home

experienced water intrusion in June 2014 and May 2015. The parties disagreed on the nature of

the warranty work Pasadera was obligated to undertake, and offers and counter-offers were sent

under the Texas Residential Construction Liability Act (“RCLA”). Ultimately, Hughes filed a

lawsuit, and the trial court ordered the parties to submit all of their claims to arbitration based on

the arbitration provisions contained in the construction contract. The construction contract

contained a provision regarding attorney’s fees which provided: “The prevailing party in any

action to enforce the terms of this Agreement shall be entitled to receive from the non-prevailing

party all reasonable attorney’s fees and all expenses and court or arbitration costs.”

          After a nine-day arbitration proceeding, the arbitration panel issued a written award finding

the water intrusions and resulting mold constituted a breach of the express limited warranty by

Pasadera. The panel did not find Pasadera liable on Hughes’s DTPA, negligence, and rescission

claims.     Similarly, the panel did not find Hughes liable on Pasadera’s DTPA and RCLA

counterclaims. Finally, the panel found Pasadera’s offer and supplemental offer of settlement

which were made under the RCLA were reasonable. Because Hughes rejected the offer, the panel

concluded Hughes could not recover an amount in excess of the fair market value of Pasadera’s

last offer of settlement and could recover only the reasonable and necessary costs and attorney’s

fees Hughes incurred before the offer was rejected. Based on this conclusion, the panel awarded

Hughes $103,340.26 in damages, attorney’s fees, expenses, and interest.

          With regard to the attorney’s fees provision in the construction contract, the panel found

the following:



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                  Prevailing Party: The remaining issue is whether [Hughes] or [Pasadera] is
         the prevailing party with respect to this claim. In Fitzgerald v. Schroder Ventures
         II, LLC, 345 S.W.3d 624, 628-29 (Tex. App.—San Antonio 2011, no writ), the
         Fourth Court of Appeals concluded that the analysis in Intercontinental Group
         Partnership v. KB Homes Lone Star, L.P., 295 S.W.3d 650 (Tex. 2009) (requiring
         an affirmative recovery) was inapposite to a claim for attorney’s fees by a defendant
         in litigation. The Court concluded that a defendant that obtained a judgment in its
         favor (take-nothing) is the prevailing party and is therefore entitled to attorney’s
         fees. In this case, [Pasadera] did not obtain a take-nothing award. [Pasadera] could
         have drafted “prevailing party” in a way that could have provided it prevailing party
         status 1 but did not do so. Accordingly, the panel concludes that Respondent was
         not a “prevailing party.”

                 However, since the panel has found that [Hughes] rejected a reasonable
         offer, he is not a prevailing party either and is only entitled to recover those
         reasonable and necessary attorney’s fees and necessary costs incurred before the
         offer was rejected. See Tex. Prop. Code §27.004(e)(2).

         As previously noted, Hughes filed a motion to confirm the arbitration award while Pasadera

filed a motion to vacate the portion of the arbitration award finding neither party was a prevailing

party entitled to attorney’s fees, expenses, and arbitration costs. The trial court granted Hughes’s

motion and denied Pasadera’s motion. Pasadera appeals, asserting the arbitration panel exceeded

its authority by failing to determine it was the prevailing party and by failing to award it

$601,525.25 in attorney’s fees and $184,060.26 in expenses and arbitration costs.

                              STANDARD OF REVIEW AND GOVERNING LAW

         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. 2 East


1
  The footnote in the arbitration award was footnote 15 and stated:
            E.g. The “prevailing party” shall be deemed to be the party whose last written offer to settle the
            dispute (or the fair market value of the offer), before the initiation of the proceeding/arbitration,
            most closely approximates the final award (excluding any award for attorney’s fees, costs, and
            prejudgment interest which accrue after the offer is made).
2
   It is unclear whether Pasadera is arguing this court has “expanded judicial review” based on a provision in the
construction contract stating, “The parties agree that in the event of an arbitration proceeding pursuant hereto, the
parties shall file a joint motion to request that the arbitrator strictly observe all applicable state and federal laws,
including, but not limited to, applicable statutes of limitation.” Although the Texas Supreme Court has held an
arbitration agreement can provide for “expanded judicial review,” “absent clear agreement, the default under the TAA,
. . ., is restricted judicial review.” Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84, 101 (Tex. 2011). In order to provide
for expanded judicial review, this court has held there must be “a ‘clear agreement to limit the [arbitrator’s authority

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Tex. Salt Water Disposal Co. v. Werline, 307 S.W.3d 267, 271 (Tex. 2010); D.R. Horton-Tex., Ltd.

v. Bernhard, 423 S.W.3d 532, 534 (Tex. App.—Houston [14th Dist.] 2014, pet. denied); City of

Laredo v. Mojica, 399 S.W.3d 190, 194-95 (Tex. App.—San Antonio 2012, pet. denied). Under

the Texas General Arbitration Act, a trial court must confirm an arbitration award unless grounds

are offered for vacating, modifying, or correcting an award under section 171.088 or 171.091 of

the Act. TEX. CIV. PRAC. & REM. CODE ANN. § 171.087 (West 2011). A party seeking to vacate

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

section 171.088.” Hoskins v. Hoskins, 497 S.W.3d 490, 495 (Tex. 2016). In this case, Pasadera

relies on section 171.088(a)(3)(A) which requires an award to be vacated if “the arbitrators

exceeded their powers.” TEX. CIV. PRAC. & REM. CODE ANN. § 171.088(a)(3)(A).

         In DiAthegen, LLC v. Phyton Biotech, Inc., this court addressed the legal standard

governing an assertion that the arbitrators exceeded their powers, reasoning:

         . . . . An arbitrator exceeds his powers if he acts contrary to express contractual
         provisions. Thus, an arbitration award that ignores a clear contractual limitation on
         the authority of the arbitrator should be vacated. However, “[i]t is not enough ... to
         show that the [arbitrator] committed an error—or even a serious error. Because the
         parties bargained for the arbitrator’s construction of their agreement, an arbitral
         decision even arguably construing or applying the contract must stand, regardless
         of a court’s view of its (de)merits.” Because “the task of an arbitrator is to interpret
         and enforce a contract, not to make public policy,” it “is only when an arbitrator
         strays from interpretation and application of the agreement and effectively
         dispenses his own brand of industrial justice that his decision may be
         unenforceable.” The question before the court is “whether the arbitrators even
         arguably interpreted the Agreement in reaching their award; it is not whether their
         interpretations of the Agreement or the governing law were correct.”




and expand the scope of judicial review.’” Methodist Healthcare Sys., Ltd., LLP v. Friesenhahn, No. 04-16-00824-
CV, 2017 WL 4518284, at *3 (Tex. App.—San Antonio Oct. 11, 2017, no pet. h.) (mem. op.) (emphasis in original)
(quoting Forest Oil Corp. v. El Rucio Land & Cattle Co., 518 S.W.3d 422, 432 (Tex. 2017)). In the instant case, the
sentence quoted from the construction contract “does not ‘clearly expand judicial review of an arbitration award to
encompass reversible error under standards applicable in a conventional appeal from a final judgment rendered after
trial.’” Id. (quoting Denbury Onshore, LLC v. Texcal Energy S. Tex., L.P., 513 S.W.3d 511, 519 (Tex. App.—Houston
[14th Dist.] 2016, no pet.)). Accordingly, the default restricted judicial review applies in this case. See Nafta Traders,
Inc., 339 S.W.3d at 101.

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                                                                                        04-17-00021-CV


No. 04-14-00267-CV, 2015 WL 5037645, at *4 (Tex. App.—San Antonio Aug. 26, 2015, pet.

denied) (mem. op) (internal citations omitted); see also O’Grady v. Nat’l Union Fire Ins. Co. of

Pittsburgh, P.A., 506 S.W.3d 121, 126-27 (Tex. App.—Corpus Christi 2016, pet. denied) (noting

arbitrator exceeds his powers by deciding a matter not properly before him or by departing from

the arbitration agreement to such an extent that the arbitrator, “in effect, dispenses his own idea of

justice”); D.R. Horton-Tex., Ltd., 423 S.W.3d at 534 (noting “an arbitrator exceeds his authority

when he disregards the contract and dispenses his own idea of justice”). Consistent with the legal

standard announced in DiAthegen, LLC, Texas courts uniformly acknowledge that a mistake of

fact or law by an arbitrator is not a proper ground for vacating an arbitration award. See, e.g.,

Prescription Health Network, LLC v. Adams, 02-15-00279-CV, 2017 WL 1416875, at *3 (Tex.

App.—Fort Worth Apr. 20, 2017, pet. denied) (mem. op.) (noting court’s review is so limited that

“we may not vacate an award even if it is based upon a mistake in law or fact”); O’Grady, 506

S.W.3d at 126 (“To constitute misconduct requiring vacation of an award, an error in the

arbitrator’s determination must be one that is not simply an error of law….”); City of Laredo, 399

S.W.3d at 195 (“Review is so limited that an arbitration award may not be vacated even if there is

a mistake of fact or law.”); Centex/Vestal v. Friendship W. Baptist Church, 314 S.W.3d 677, 683

(Tex. App.—Dallas 2010, pet. denied) (“Review of an arbitration award is so limited that even a

mistake of fact or law by the arbitrator in the application of substantive law is not a proper ground

for vacating an award.”). As one court has explained, “the appropriate inquiry is not whether the

arbitrator decided an issue correctly, but instead whether she had the authority to decide the issue

at all.” D.R. Horton-Tex., Ltd., 423 S.W.3d at 534 (emphasis in original) (internal quotation

omitted).

       Pasadera primarily relies on Townes Telecomm., Inc. v. Travis, Wolff & Co., L.L.P., 291

S.W.3d 490 (Tex. App.—Dallas 2009, pet. denied), to argue the arbitration panel was required to

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determine that one of the parties was a prevailing party. In Townes, the arbitration panel held that

each party “should pay their own professional fees incurred in the litigation, including legal,

expert, and administrative fees, and share equally in the costs of the arbitration process.” 291

S.W.3d at 492. The Townes Group filed a motion to modify the panel’s award arguing “the panel

erred in failing to award attorney’s fees and costs to the prevailing party as required by the

arbitration agreement.” Id. In that case, the arbitration agreement provided:

       All reasonable costs of both parties, as determined by the arbitrators, including but
       not limited to (1) the costs, including reasonable attorneys’ fees, of the arbitration;
       (2) the fees and expenses of the AAA and the arbitrators; and (3) the costs, including
       reasonable attorney’s fees, necessary to confirm the award in court shall be borne
       entirely by the non-prevailing party (to be designated by the arbitration panel in the
       award) and may not be allocated between the parties by the arbitration panel.

Id. at 492-93. The trial court confirmed the award without modification, and The Townes Group

appealed. Id. at 493.

       The Dallas court first noted “the parties’ arbitration agreement clearly place[d] the issue of

awarding costs within the scope of the [arbitration] panel’s power.” Id. at 494. However, the

Dallas court also noted that “with equal clarity, the agreement limit[ed] the panel’s power to make

such an award by stating that the costs ‘may not be allocated between the parties.’” Id. The Dallas

court concluded, “By so limiting the panel’s power, the agreement require[d] the panel to designate

a non-prevailing party to bear the costs of both sides.” Id. By allocating the costs among the

parties, the Dallas court held the panel exceeded its powers by acting in direct contravention of the

agreement. Id. The Dallas court’s holding was based on “the arbitration agreement specifically

foreclose[ing] the option of ordering the parties to share in the costs of the arbitration.” Id.

       In the instant case, the construction contract does not contain any language specifically

foreclosing the panel from determining that neither party was a prevailing party. Since the panel

was not specifically foreclosed from making that finding, the panel did not act in direct


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contravention of the agreement or exceed its powers. Accordingly, the trial court did not err in

denying Pasadera’s motion to vacate.

       “We pass no judgment on whether the [panel] made a correct decision under the law and

facts of this case.” D.R. Horton-Tex., Ltd., 423 S.W.3d at 535; but see Walnut Retail Ctr. Gen.

Partner, LC v. LBL, Ltd., No. 04-13-00878-CV, 2014 WL 5463898, at *4 (Tex. App.—San

Antonio Oct. 29, 2014, no pet.) (holding trial court did not abuse its discretion in determining

neither party prevailed). “But the issue of attorney’s fees was clearly submitted to the [panel], and

the [panel] consulted the contractual provisions and statutes regarding attorney’s fees when

reaching [its] conclusion.” D.R. Horton-Tex., Ltd., 423 S.W.3d at 535; see also LeFoumba v.

Legend Classic Homes, Ltd., No. 14-08-00243-CV, 2009 WL 3109875, at *3 (Tex. App.—

Houston [14th Dist.] Sept. 17, 2009, no pet.) (mem. op.) (holding arbitrator had authority to decide

upon appropriate amount of attorney’s fees and did not exceed her authority by committing a

mistake of law). Therefore, based on the language in the parties’ contract, we cannot conclude

that the arbitration panel exceeded its authority by finding that neither party was a prevailing party.

                                              CONCLUSION

       The trial court’s order is affirmed.

                                                       Karen Angelini, Justice




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