                           NUMBER 13-08-00708-CV

                             COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


    IN THE GUARDIANSHIP OF RAQUEL CANTU DE VILLARREAL,
                 AN INCAPACITATED PERSON


              On appeal from the County Court at Law No. 2
                      of Cameron County, Texas.


                                    OPINION

               Before Justices Yañez, Rodriguez, and Garza
                      Opinion by Justice Rodriguez

      Appellants, Ignacio Villarreal Cantu, Fernando Villarreal Cantu, Martha

Guadalupe Villarreal Cantu, and Consuelo Villarreal Cantu, seek to reverse an order

confirming an arbitration award in favor of appellees, Raquel Villarreal Cantu,

individually and in her capacity as guardian of the person of Doña Raquel Cantu de

Villarreal, Marcelo Villarreal Cantu, and Carlos Villarreal Cantu.   By three issues,

appellants contend that the award should be vacated because the arbitrator exceeded
his powers in several respects and refused to postpone the arbitration hearing. We

affirm.

                                             I. BACKGROUND

          Doña Raquel Cantu de Villarreal (“Doña Raquel”), an elderly widow, is the

mother of seven adult children, including appellants and appellees. Disputes between

the children regarding Doña Raquel’s care and custody and the disposition of her

sizeable estate have given rise to a series of highly contentious legal proceedings,

including four appeals and two original proceedings.1 We will not address the factual

and procedural underpinnings of these disputes except as necessary to address the

legal issues pertinent to this appeal. See TEX . R. APP. P. 47.1, 47.4.

              Following a court-ordered mediation to resolve some of the familial disputes,

Doña Raquel’s children entered into an “Irrevocable Family Settlement Agreement,

Assignment, and Release and Rule 11 Agreement.” This agreement was entered into

and signed by all seven of the children. The agreement provides that it was made:

          [F]or the purpose of settling the various claims, controversies, and
          disputes, in Mexico and the United States, civil and criminal, among these
          1
           San Pedro Impulsora de Inmuebles Especiales, S.A., de C.V. v. Villarreal, No. 13-09-00226-CV,
2010 Tex. App. LEXIS ___ (Tex. App.–Corpus Christi Nov. 18, 2010, no pet. h.) (affirm ing the denial of a
corporation’s special appearance); In re De Villarreal, No. 13-08-00408-CV, 2009 Tex. App. LEXIS 2249, at
*11-12 (Tex. App.–Corpus Christi Apr. 2, 2009, pet. denied) (m em . op.) (affirm ing in part and dism issing in
part the appeal of Ignacio, Consuelo, Fernando, and Martha regarding two post-judgm ent orders enforcing
a judgm ent and issuing writs of attachm ent); In re Cantu, No. 13-08-00682-CV, 2009 Tex. App. LEXIS 2241,
at *1-2 (Tex. App.–Corpus Christi Apr. 2, 2009, orig. proceeding [m and. denied]) (m em . op.) (denying petition
for writ of m andam us filed by Consuelo contending that the trial court failed to satisfy “the m andatory and
jurisdictional notice requirem ents of the Texas Probate Code” because it held an initial guardianship hearing
and appointed a tem porary guardian “without giving the proposed ward prior notice as required by section 875
of the Texas Probate Code”); In re de Villarreal, No. 13-08-00707-CV, 2009 Tex. App. LEXIS 2233, at *1 (Tex.
App.–Corpus Christi Apr. 2, 2009, no pet.) (per curiam ) (m em . op.) (dism issing Ignacio’s appeal of an order
rem oving him as guardian of the person of Doña Raquel); In re Cantu, No. 13-08-00437-CV, 2008 Tex. App.
LEXIS 5795, at *1-2 (Tex. App.–Corpus Christi July 30, 2008, orig. proceeding [m and. denied]) (m em . op.)
(denying petition for writ of m andam us filed by Ignacio, Fernando, Consuelo, and Martha seeking to com pel
the trial court to vacate various orders pertaining to the guardianship of Doña Raquel).


                                                       2
        parties arising out of the facts and circumstances relating directly or
        indirectly to the transfer and/or gifting of property of [Doña Raquel] and/or
        Ignacio Villarreal, the care and support of [Doña Raquel], and all other
        claims, controversies, and disputes, civil and criminal, between the parties
        arising prior to the date of this Agreement.

The agreement defines the scope of Doña Raquel’s estate and puts various properties

into “hotchpotch”2 for distribution to the seven children, and further includes provisions

pertinent to the guardianship, care, and welfare of Doña Raquel.                              The agreement

contains an arbitration provision and provides that Reynaldo Garza, Jr., the mediator for

the mediation resulting in the agreement, “shall be the arbitrator of any dispute

regarding the interpretation and implementation of this Agreement.” The agreement

expressly states that Garza’s “determination of any dispute regarding this Agreement

and its implementation . . . shall be final with no party having the right to appeal,” and

the “implementation of this [A]greement includes the manner in which the [h]otchpotch

is to be distributed to the seven children . . . .”

        The trial court approved the settlement agreement and incorporated it into the

final judgment in the case by a first amended order signed on February 14, 2008. Soon

after the agreement was signed, however, the children began arguing about the

agreement’s implementation.              Alleging that appellants breached the agreement and

failed to abide by the judgment, Raquel moved for an accounting, contempt, a

temporary restraining order, and temporary and permanent injunctions. The gravamen

of Raquel’s complaint was that appellants withdrew 34 million pesos, which was

        2
           “Hotchpotch” m ay be generally defined as “the blending of properties to secure equality of division.”
B R YAN A. G ARN ER , A D IC TIO N AR Y OF M O DER N L EG AL U SAGE 408 (2d ed. 1995); see also In the Guardianship
of De Villarreal, No. 13-08-00408-CV, 2009 Tex. App. LEXIS 2249, at*4-5 n.3 (Tex. App.–Corpus Christi Apr.
2, 2009, pet. denied) (m em . op.).


                                                        3
referenced in and allocated by the settlement agreement, from the possession of a

Mexican court, but failed to deposit the monies into a Mexican trust as required by the

agreement and judgment.

      On June 11, 2008, the trial court entered an order granting Raquel’s motion and:

ordering appellants to deposit the money into an account created for the benefit of the

trust referenced in the agreement and to provide a detailed accounting regarding the

money; enjoining appellants from selling, encumbering, or otherwise transferring any of

the real estate properties described in the agreement in any manner inconsistent with

the agreement; setting a final hearing for June 27, 2008; and ordering appellants to

appear at that time “to show their compliance with this Court’s Order herein to show

why this Court’s Order should be vacated.” On June 27, Ignacio, Fernando, Consuelo

and Martha failed to appear, and accordingly, the trial court entered an order for

issuance of writs of attachment against them.

      On June 9, 2008, the trial court entered an order clarifying some of its previous

orders and compelling arbitration.   The matter was arbitrated on August 18, 2008.

Appellants did not submit proposals, comments, or responses to the arbitrator

regarding the issues subject to arbitration and did not personally appear at the

arbitration, although they were represented by counsel at the hearing. On September

25, 2008, the arbitrator issued an eighteen page arbitration award, including extensive

factual and legal conclusions, which generally collected and divided the estate of Doña

Raquel and provided for her care. After appellees moved to confirm the award and




                                           4
appellants moved to vacate it, the trial court entered an order confirming the award.

This appeal ensued.

                         II. STANDARD AND SCOPE OF REVIEW

      Review of a trial court’s decision as to vacatur or confirmation of an arbitration

award is de novo and the appellate court reviews the entire record. Chestnut Energy

Partners v. Tapia (In re Chestnut Energy Partners, Inc.), 300 S.W.3d 386, 397 (Tex.

App.–Dallas 2009, pet. denied); Statewide Remodeling, Inc. v. Williams, 244 S.W.3d

564, 567 (Tex. App.–Dallas 2008, no pet.); see Hisaw & Assocs. Gen. Contractors, Inc.

v. Cornerstone Concrete Sys., Inc., 115 S.W.3d 16, 18 (Tex. App.–Fort Worth 2003,

pet. denied).

                         III. VACATUR OF ARBITRATION AWARD

      Because Texas law favors arbitration, judicial review of an arbitration award is

extraordinarily narrow. E. Tex. Salt Water Disposal Co. v. Werline, 307 S.W.3d 267,

271 (Tex. 2010); see CVN Group, Inc. v. Delgado, 95 S.W.3d 234, 238 (Tex. 2002);

Statewide Remodeling, Inc., 244 S.W.3d at 568; GJR Mgmt. Holdings, L.P. v. Jack

Raus, Ltd., 126 S.W.3d 257, 263 (Tex. App.–San Antonio 2003, pet. denied);

IPCO-G.&C. Joint Venture v. A.B. Chance Co., 65 S.W.3d 252, 256 (Tex.

App.–Houston [1st Dist.] 2001, pet. denied). “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 Group, Inc., 95 S.W.3d at

238. But see Morrison v. Circuit City Stores, 317 F.3d 669, 669-70 (6th Cir. 2003)

(noting that arbitration can often be much more expensive for consumers than a



                                          5
comparable case in litigation); Eagle v. Fred Martin Motor Co., 809 N.E.2d 1177,

1178-84 (Ohio App. Div. 2004) (discussing prohibitive costs of arbitration compared to

litigation for many consumers); see also Richard M. Alderman, Why We Really Need

the Arbitration Fairness Act, It’s All About Separation of Powers, 12 J. CONSUMER &

COM . L. 151, 154 n. 55 (2009) (“Although most small claims courts provide a judge and

jury for less than $100, the costs of arbitration far exceed this amount. A recent study

by Public Citizen concludes that the costs of arbitration almost always exceed the costs

of litigation.”); Theodore Eisenberg, Geoffrey P. Miller & Emily Sherwin, Arbitration’s

Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and

Nonconsumer Contracts, 41 U. MICH . J.L. REFORM 871, 895 (2008) (stating that

“corporations’ selective use of arbitration clauses against consumers, but not against

each other, suggests that their use of mandatory arbitration clauses may be based

more on strategic advantage” in defending against consumer claims); Mark Budnitz,

The High Cost of Mandatory Consumer Arbitration, 67 LAW & CONTEMP. PROBS . 133,

133 (2004) (concluding that the cost of mandatory arbitration is often prohibitively high).

          The Texas Supreme Court has “long held that ‘an award of arbitrators upon

matters submitted to them is given the same effect as the judgment of a court of last

resort.    All reasonable presumptions are indulged in favor of the award, and none

against it.’”   CVN Group, Inc., 95 S.W.3d at 238 (quoting City of San Antonio v.

McKenzie Constr. Co., 136 Tex. 315, 150 S.W.2d 989, 996 (Tex. 1941) (“The courts will

not overthrow an award such as this, except in a very clear case.”)).        Review of an

arbitration award is so limited that an award may not be vacated even if there is a



                                             6
mistake of fact or law. Univ. Comp. Sys., Inc. v. Dealer Solutions, L.L.C., 183 S.W.3d

741, 752 (Tex. App.–Houston [1st Dist.] 2005, pet. denied); Stieren v. McBroom, 103

S.W.3d 602, 605 (Tex. App.–San Antonio 2003, pet. denied); Vernon E. Faulconer, Inc.

v. HFI, Ltd. P’ship, 970 S.W.2d 36, 39 (Tex. App.–Tyler 1998, no pet.). The arbitrator’s

award is “conclusive on the parties as to all matters of fact and law.” Pheng Invs., Inc.

v. Rodriquez, 196 S.W.3d 322, 328 (Tex. App.–Fort Worth 2006, no pet.). Where there

is no allegation of a statutory or common law ground to vacate or modify the arbitration

award, we lack jurisdiction to review the arbitrator’s decision. Fogal v. Stature Constr.,

Inc., 294 S.W.3d 708, 721 (Tex. App.–Houston [1st Dist.] 2009, pet. denied); Providian

Bancorp Servs. v. Thomas, 255 S.W.3d 411, 415 (Tex. App.–El Paso 2008, no pet.);

Pettus v. Pettus, 237 S.W.3d 405, 418 (Tex. App.–Fort Worth 2007, pet. denied).

      The Texas Civil Practice and Remedies Code dictates that, unless grounds are

offered for vacating, modifying, or correcting an award under other specified sections of

the code, the court, on application of a party, shall confirm the award. See TEX . CIV.

PRAC . & REM . CODE ANN . § 171.087 (Vernon 2005). Thus, “confirmation is the default

result unless a challenge to the award has been or is being considered.” Hamm v.

Millennium Income Fund, L.L.C., 178 S.W.3d 256, 262 (Tex. App.–Houston [1st Dist.]

2005, pet. denied). The grounds for vacating an award under the code are set out in

section 171.088(a), which states:

      On application of a party, the court shall vacate an award if:

      (1)    the award was obtained by corruption, fraud, or other undue
             means;

      (2)    the rights of a party were prejudiced by:


                                            7
                 (A)    evident partiality by an arbitrator appointed as a neutral
                        arbitrator;

                 (B)    corruption in an arbitrator; or

                 (C)    misconduct or wilful misbehavior of an arbitrator;

          (3)    the arbitrators:

                 (A)    exceeded their powers;

                 (B)    refused to postpone the hearing after a showing of sufficient
                        cause for the postponement;

                 (C)    refused to hear evidence material to the controversy; or

                 (D)    conducted the hearing, contrary to Section 171.043,
                        171.044, 171.045, 171.046, or 171.047, in a manner that
                        substantially prejudiced the rights of a party; or

          (4)    there was no agreement to arbitrate, the issue was not adversely
                 determined in a proceeding under Subchapter B, and the party did
                 not participate in the arbitration hearing without raising the
                 objection.

TEX . CIV. PRAC . & REM . CODE ANN . § 171.088(a) (Vernon 2005). “These grounds reflect

severe departures from an otherwise proper arbitration process and are of a completely

different character than ordinary legal error.” Centex/Vestal v. Friendship W. Baptist

Church, 314 S.W.3d 677, 684 (Tex. App.–Dallas 2010, no pet.) (quoting Quinn v. Nafta

Traders, Inc., 257 S.W.3d 795, 798 (Tex. App.–Dallas 2008, pet. granted)).              The

grounds for modifying or correcting an award are set out in section 171.091 (a), which

states:

          On application, the court shall modify or correct an award if:

          (1)    the award contains:

                 (A)    an evident miscalculation of numbers; or


                                                 8
              (B)     an evident mistake in the description of a person, thing, or
                      property referred to in the award;

       (2)    the arbitrators have made an award with respect to a matter not
              submitted to them and the award may be corrected without
              affecting the merits of the decision made with respect to the issues
              that were submitted; or

       (3)    the form of the award is imperfect in a manner not affecting the
              merits of the controversy.

TEX . CIV. PRAC . & REM . CODE ANN . § 171.091(a) (Vernon 2005).

                    IV. THE ARBITRATOR ’S AUTHORITY OVER VOID ORDERS
                          AND AWARD OBTAINED BY UNDUE MEANS


       In their first issue, appellants claim that the arbitration award is the product of a

series of trial court orders that are void because the trial court failed to comply with the

notice and hearing requirements in section 875(e) of the Texas Probate Code. See

TEX . PROB. CODE ANN . § 875(e) (Vernon Supp. 2009). According to appellants, the

arbitration award should be vacated because the arbitrator exceeded his powers and

the award was obtained by undue means. See TEX . CIV. PRAC . & REM . CODE ANN . §

171.088(a)(1), (a)(3)(a). In two sub-issues, appellants contend that: (1) the award

should be vacated because the arbitrator had no authority to decide issues submitted

by a void court order arising out of a settlement agreement that is the product of other

void court orders; and (2) the award should be vacated because it was obtained by

undue means. Appellants’ argument that the arbitration award was obtained by “undue

means’” is merely an argument that it was obtained as a result of “the coercive power of

a court lacking jurisdiction.”




                                             9
        Appellees contend, in contrast, that:              (1) the trial court and this Court have

already determined and rejected appellants’ jurisdictional arguments; (2) further review

of this matter is blocked by law of the case and/or judicial estoppel; and (3) the parties’

settlement agreement requires that certain issues be arbitrated without appeal.

        In cause number 13-08-00682-CV, appellant herein, Consuelo Villarreal Cantu,

argued that the trial court failed to satisfy “the mandatory and jurisdictional notice

requirements of the Texas Probate Code” because it held an initial guardianship

hearing and appointed a temporary guardian “without giving the proposed ward prior

notice as required by section 875 of the Texas Probate Code.”                           In re Cantu, No.

13-08-00682-CV, 2009 Tex. App. LEXIS 2241, at *1-2 (Tex. App.–Corpus Christi Apr.

2, 2009, orig. proceeding [mand. denied])3 (mem. op.); see generally TEX . PROB. CODE

ANN . § 875.       Consuelo thus contended that the trial court’s jurisdiction over Doña

Raquel was never properly invoked, and consequently, all orders in the guardianship

proceeding were void. See In re Cantu, 2009 Tex. App. LEXIS 2241, at *1-2. The

Court requested and received a response to Consuelo’s petition for writ of mandamus

from the real parties in interest, and further received a reply thereto from the relator. Id.

After due consideration, we concluded that the trial court had acquired jurisdiction over

Doña Raquel at the time it signed the order appointing Raquel as her temporary

guardian, and therefore the order appointing Raquel as temporary guardian, and

subsequent orders in that matter, were not void. See id. at *8-10.

        3
         Currently pending before the Court is appellees’ “Motion to Take Judicial Notice,” by which appellees
request that this Court take judicial notice of the briefs that were filed in the Texas Suprem e Court in cause
num ber 09-0441. The Court received and reviewed the response to this m otion that was filed by appellants.
Given the current posture of this case, we dism iss appellees’ m otion as m oot.


                                                     10
       A judgment or order is void when it is apparent that the court rendering it lacked

jurisdiction of either the parties or the subject matter of the lawsuit. See In re Mask,

198 S.W.3d 231, 235 (Tex. App.–San Antonio 2006, orig. proceeding); In re Bokeloh,

21 S.W.3d 784, 794 (Tex. App.–Houston [14th Dist.] 2000, orig. proceeding). For a trial

court to have jurisdiction over a party, the party must be properly before the court in the

pending controversy as authorized by procedural statutes and rules. Perry v. Ponder,

604 S.W.2d 306, 322 (Tex. Civ. App.–Dallas 1980, no writ). Generally, a trial court

does not have jurisdiction to enter a judgment or order against a respondent unless the

record shows proper service of citation on the respondent, or an appearance by the

respondent, or a written memorandum of waiver at the time the judgment or order was

entered. TEX . R. CIV. P. 124; Werner v. Colwell, 909 S.W.2d 866, 869-70 (Tex. 1995);

Autozone, Inc. v. Duenes, 108 S.W.3d 917, 920 (Tex. App.–Corpus Christi 2003, no

pet.). If a trial court enters a judgment before it acquires jurisdiction of the parties, the

judgment is void. In re Mask, 198 S.W.3d at 235; In re B.A.G., 794 S.W.2d 510,

511-12 (Tex. App.–Corpus Christi 1990, no writ) (citing Browning v. Placke, 698 S.W.2d

362, 363 (Tex. 1985)).

       In our previous opinion, we considered that the record before us showed that:

(1) the trial court sent notice of the hearing by facsimile to an attorney who appeared at

the hearing on behalf of Doña Raquel’s Mexican counsel; (2) Doña Raquel’s attorney

ad litem, who had met with her prior to the hearing, appeared at the hearing on her

behalf; (3) Doña Raquel was present for some, if not all, of the proceedings attendant to

the hearing; (4) Doña Raquel was personally served with the application for



                                             11
guardianship shortly after the hearing began; and (5) the trial court’s first order

appointing Raquel as temporary guardian was not entered until after Doña Raquel was

personally served with the application. In re Cantu, 2009 Tex. App. LEXIS 2241, at

*8-10.    We thus concluded that the trial court had acquired jurisdiction over Doña

Raquel at the time it signed the order appointing Raquel as her temporary guardian,

and that the orders entered in the guardianship proceeding were not void. Id. at *10

(citing In re B.A.G., 794 S.W.2d at 511-12; Ortiz v. Gutierrez, 792 S.W.2d 118, 119

(Tex. App.–San Antonio 1989, writ denied) (holding that the personal service

requirement under the former guardianship statute was jurisdictional, and therefore, the

trial court properly dismissed a guardianship proceeding when the proposed ward had

not been personally served)).

         Under the “law of the case” doctrine, questions of law decided on appeal to a

court of last resort will govern the case throughout its subsequent stages. Loram Maint.

of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006) (citing Hudson v. Wakefield, 711

S.W.2d 628, 630 (Tex. 1986)). By narrowing the issues in successive stages of the

litigation, the doctrine is intended to achieve uniformity of decision as well as judicial

economy and efficiency.     Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex.

2003). Appellants’ first issue in this appeal, in which they contend that the arbitration

award should be vacated because it is the product of a series of trial court orders that

are void and thus the arbitrator exceeded his powers or the award was obtained by

undue means, has already been addressed by this Court. See In re Cantu, 2009 Tex.

App. LEXIS 2241, at *8-10. We have been presented with no new or additional facts,



                                           12
legal analysis, or argument that would change the disposition of this issue. Accordingly,

the law of the case doctrine precludes us from reconsidering these issues.                                    See

Briscoe, 102 S.W.3d at 716. We overrule appellants’ first issue.4

            V. ARBITRATOR ’S AUTHORITY TO ENFORCE CONTRACTS PROHIBITED BY LAW
                      OR ISSUE AN AWARD THAT VIOLATES PUBLIC POLICY


        In their second issue, appellants argue that, although an arbitrator’s powers are

defined by contract, an arbitrator has no authority to enforce contractual provisions that

are prohibited by law or to issue an award that violates public policy. In two sub-issues,

appellants contend that:            (1) the award should be vacated because the arbitrator

exceeded his authority by enforcing contractual provisions that are prohibited by law;

and (2) the award should be vacated because the arbitrator exceeded his authority by

issuing an award that violates public policy. Specifically, appellants contend that the

settlement agreement required the parties to divide assets that they did not own and

which instead belonged to their mother or a separate company, San Pedro Impulsora

De Inmuebles Especiales S.A. de C.V. (“San Pedro Impulsora”).                                 Appellants also

contend that the arbitration award violates public policy because it requires the parties

not to act in the best interests of their mother insofar as it prevents their mother’s return

to Mexico until conditions precedent are met.                        In contrast, appellees claim that

appellants waived their illegality and public policy objections to the arbitration award by




        4
          W e further note that section 171.090 of the Texas Arbitration Act specifically provides that “[t]he fact
that the relief granted by the arbitrators could not or would not be granted by a court of law or equity is not a
ground for vacating or refusing to confirm the award.” See T EX . C IV . P RAC . & R E M . C O D E A N N . § 171.090
(Vernon 2005).




                                                        13
not raising them during the arbitration hearing and by failing to furnish a record of the

arbitration proceeding.

      As an initial matter, we note that appellants’ second issue is phrased in terms of

both statutory grounds for vacatur, insofar as they contend that the arbitrator exceeded

his powers, and common law grounds, insofar as they invoke illegality and public policy

grounds for vacating the award. In 2008, the United States Supreme Court held that

the Federal Arbitration Act’s statutory grounds for vacating an arbitration award are the

exclusive means to vacate an award, thus foreclosing any contractual ground for

vacatur of an arbitration award. Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576,

582 (2008).    In rendering this decision, the supreme court “placed in doubt the

continued validity of common law grounds for vacatur . . . previously recognized by

Texas state and federal courts.” Townes Telecomms., Inc. v. Travis, Wolff & Co., 291

S.W.3d 490, 493 (Tex. App.–Dallas 2009, pet. denied) (finding it unnecessary to

address common law grounds for vacatur because appellants had shown a statutory

ground for vacatur of an arbitration award).

      In decisions rendered prior to Hall, the Texas Supreme Court assumed, without

deciding, that common law grounds for vacating an award had not been preempted by

statute. See CVN Group, 95 S.W.3d at 238 (discussing illegality and public policy

grounds for vacatur and noting that the parties had not addressed whether common law

grounds for vacatur had been preempted by statutes governing arbitration); Callahan &

Assocs. v. Orangefield Indep. Sch. Dist., 92 S.W.3d 841, 844 (Tex. 2002) (“Similarly,

assuming without deciding that [appellee] may rely on the gross mistake standard under



                                           14
the common law to attack the arbitrator’s award, an arbitrator does not violate the

common law simply by failing to award damages.”).                            Following Hall, several

intermediate appellate courts have limited review of an arbitration award under the

Federal Arbitration Act to statutory grounds. See, e.g., Allstyle Coil Co., v. Carreon,

295 S.W.3d 42, 44 (Tex. App.–Houston [1st Dist.] May 7, 2009, no pet.); Ancor

Holdings, LLC v. Peterson, Goldman, & Villani, Inc., 294 S.W.3d 818, 828 (Tex.

App.–Dallas 2009, no pet.); Fogal, 294 S.W.3d at 720; see also Petroleum Analyzer

Co. LP v. Olstowski, No. 01-09-00076-CV, 2010 Tex. App. LEXIS 5581, at *32-33 (Tex.

App.–Houston [1st Dist.] July 15, 2010, no pet.) (mem. op.); Lefoumba v. Legend

Classic Homes, Ltd., No. 14-08-00243-CV, 2009 Tex. App. LEXIS 7573, at *5-6 (Tex.

App.–Houston [14th Dist.] Sept. 17, 2009, no pet.) (mem. op.); Chandler v. Ford Motor

Credit Co., No. 04-08-00100-CV, 2009 Tex. App. LEXIS 1587, at *8-10 (Tex. App.–San

Antonio Mar. 4, 2009, no pet.) (mem. op.).                  Some courts, relying on the parallel

structures of the Federal Arbitration Act and the Texas Arbitration Act, have likewise

held that the Texas Arbitration Act’s statutory provisions for vacating an arbitration

award are exclusive, thus foreclosing the application of common law grounds for

vacatur. See Age Indus. v. Edwards, 318 S.W.3d 461, 463 (Tex. App.–El Paso 2010,

pet. dism’d); Quinn, 257 S.W.3d at 799.5 In contrast, some Texas courts continue to

apply statutory and common law grounds for vacating an award.                                 See, e.g.,

Graham-Rutledge & Co. v. Nadia Corp., 281 S.W.3d 683, 688 (Tex. App.–Dallas 2009,

        5
         The com m on law and the Texas General Arbitration Act coexist as a dual system of arbitration, and
the TAA is “cum ulative” of the com m on law. L. H. Lacy Co. v. City of Lubbock, 559 S.W .2d 348, 351 (Tex.
1977); Collins v. Tex Mall, L.P., 297 S.W .3d 409, 415 (Tex. App.–Fort W orth 2009, no pet.).




                                                    15
no pet.) (reviewing statutory grounds for vacating an award and stating that Texas

common law also provides that a binding arbitration award may be set aside if it is

tainted with “fraud, misconduct, or such gross mistake as would imply bad faith, or a

failure to exercise honest judgment”).

      The parties to this appeal have not addressed the continued viability of common

law grounds for vacatur of an arbitration award under the Texas Arbitration Act, and

appellants’ issues are ostensibly couched in statutory terms for vacatur. Moreover, the

applicability, or lack thereof, of the common law doctrines for vacatur is not

determinative of this appeal. See generally TEX . R. APP. P. 47.1, 47.4.       Thus, we

address appellants’ second issue, that is, whether the arbitrator exceeded his authority,

without deciding whether the common law doctrines referenced therein remain

applicable.

      The authority of an arbitrator is derived from the arbitration agreement and is

limited to a decision of the matters submitted therein either expressly or by necessary

implication. Gulf Oil Corp. v. Guidry, 160 Tex. 139, 327 S.W.2d 406, 408 (Tex. 1959);

Allstyle Coil Co., 295 S.W.3d at 44       (stating scope of authority depends on the

agreement). An arbitrator exceeds his powers when he decides matters not properly

before him. Ancor Holdings, LLC v. Peterson, Goldman, & Villani, Inc., 294 S.W.3d

818, 829 (Tex. App.–Dallas 2009, no pet.); Barsness v. Scott, 126 S.W.3d 232, 241

(Tex. App.–San Antonio 2003, pet. denied). When determining whether an arbitrator

has exceeded his power, any doubts concerning the scope of what is arbitrable should

be resolved in favor of arbitration. See Myer v. Americo Life, Inc., 232 S.W.3d 401, 408



                                           16
(Tex. App.–Dallas 2007, no pet.).       It is only when the arbitrator departs from the

agreement and, in effect, dispenses his own idea of justice that the award may be

unenforceable. Centex/Vestal, 314 S.W.3d at 684.

       In the instant case the arbitrator’s authority derives from the “Irrevocable Family

Settlement Agreement, Assignment, and Release and Rule 11 Agreement.”                   This

agreement was entered to settle “the various claims, controversies, and disputes”

among the parties “relating directly or indirectly to the transfer and gifting of property of

[Doña Raquel] and/or Ignacio Villarreal Villarreal, the care and support of [Doña

Raquel], and all other claims, controversies, and disputes, civil and criminal, between

the parties . . . .” The agreement states that “[a]ll parties agree that the estate of [Doña

Raquel] consists of the 34 million pesos . . . and whatever money that is in the

temporary guardian of the estate’s accounts in the United States.” The agreement

defines the properties that “belong to the seven children of [Doña Raquel]” and directs

that the properties “shall be placed into hotchpotch and distributed among and between

the seven children of [Doña Raquel].”       The hotchpotch is expressly defined in the

agreement to include “all shares” and “any and all assets” of San Pedro Impulsora. The

agreement further repeatedly references the guardianship for Doña Raquel and

includes provisions for her care. As previously discussed, this document provides that

arbitrator shall arbitrate “any dispute regarding the interpretation and implementation of

this Agreement” including “the manner in which the [h]otchpotch is to be distributed to

the seven children of [Doña Raquel].”




                                             17
         Because of the breadth of the arbitration agreement, we conclude that the

arbitrator was authorized to determine that the property rights at issue herein arose out

of or were related to the agreement or involved a common question of law or fact. See

Centex/Vestal, 314 S.W.3d at 685; Hisaw & Assoc. Gen. Contractors, Inc., 115 S.W.3d

at 16.    In short, the agreement at issue gave the arbitrator, either expressly or by

necessary implication, the authority to decide matters pertaining to Doña Raquel and

San Pedro Impulsora.6

         Appellants further contend that the award is illegal because the arbitrator had no

authority to issue an award distributing assets owned by Doña Raquel and San Pedro

Impulsora because appellees do not have any justiciable interest in, or the legal

capacity to sue to recover, any asset in Doña Raquel’s estate or any asset belonging to

a third party such as San Pedro Impulsora.

         As a threshold matter, when a non-prevailing party seeks to vacate an arbitration

award, it bears the burden in the trial court of bringing forth a complete record that

establishes its basis for vacating the award. Chestnut Energy Partners, 300 S.W.3d at

401; Statewide Remodeling, Inc., 244 S.W.3d at 568. When there is no transcript of

the arbitration hearing, as here, the appellate court will presume the evidence was

adequate to support the award.                Chestnut Energy Partners, 300 S.W.3d at 401;

Statewide Remodeling, Inc., 244 S.W.3d at 568. The application of this general rule


         6
           In our evaluation of appellants’ argum ents regarding the scope of the arbitrator’s authority, we are
 m indful of other courts’ cautions against a party’s “use of the authority argum ent as a ruse to induce the
reviewing court to redeterm ine the facts— even just a tiny bit—or reach a legal conclusion on them as found
or hoped for which differs from that of the arbitrators.” Centex/Vestal v. Friendship W . Baptist Church, 314
S.W .3d 677, 684 (Tex. App.–Dallas 2010, no pet.) (quoting Island on Lake Travis, Ltd. v. Hayman Co. Gen.
Contractors, 834 S.W .2d 529, 533 (Tex. App.–Austin 1992, writ granted, judgm ’t vacated w.r.m .)).


                                                      18
merely limits rather than forecloses our consideration of whether the arbitrator

exceeded his authority in this instance. Centex/Vestal, 314 S.W.3d at 685; see, e.g.,

Grand Homes 96, L.P. v. Loudermilk, 208 S.W.3d 696, 706 (Tex. App.–Fort Worth

2006, pet. denied) (noting that there was no record of the arbitration proceeding but

considering pleadings and agreement in concluding arbitrator did not exceed his

authority). Therefore, we consider the parties’ agreement and the matters submitted in

arbitration to determine whether the arbitrator exceeded his power. In so doing, we

presume any remaining evidence supports the award. See Centex/Vestal, 314 S.W.3d

at 685.

      Because we do not have a record of the proceedings by which to consider

appellants’ complaints and we presume that the evidence was adequate to support the

arbitrator’s award, see Statewide Remodeling, Inc., 244 S.W.3d at 568, we have no

evidence before us to show that the property divided by agreement was actually held by

Doña Raquel and San Pedro Impulsora. We further note that the arbitrator stated in his

award that there was “substantial evidence” presented in the exhibits and at the

arbitration hearing that appellants control San Pedro Impulsora. Accordingly, we reject

appellants’ fundamental premise underlying this issue insofar as it depends on facts

which are unsupported by the record before us.

      Moreover, appellants’ suggestion that the arbitrator lacked authority to divide

their mother’s estate is supported by citation to one case, Pike v. Crosby, 472 S.W.2d

588 (Tex. Civ. App.–Eastland 1971, no writ). They contend that this case stands for the




                                          19
proposition that heirs have no justiciable interest in a decedent’s assets or the legal

capacity to sue to cancel the decedent’s conveyance of her assets to a trustee.

       In Pike, Ora Badger conveyed all of her property to George Pike through a trust

conveyance, with the property to be held in trust for Badger’s benefit during her lifetime,

and with title to vest in Pike at Badger’s death. Id. at 588. After her death, her three

heirs at law and a principal devisee under her will brought suit to cancel the trust

conveyance. Id. The trial court granted a temporary injunction against Pike restraining

him from disposing of any of Badger’s estate pending final trial on the merits. Id. at

588-89. The court determined that the devisee under Badger’s will had no justiciable

interest or capacity to either bring or maintain the suit for cancellation of the

conveyance because Badger’s will was unprobated and thus, the devisee could not

demonstrate an interest in the property in question. Id. at 589-90. The court further

ruled that the decedent’s heirs at law lacked a justiciable interest in the property and did

not have legal capacity to maintain the suit because they could not allege, as required

by common law, that there was no administration of Badger’s estate pending, no

necessity for administration, and no will left by the decedent. Id. at 590-91. The court

held that, absent a right to maintain the underlying action, appellees were not entitled to

the temporary injunction. Id. at 591.

       Pike does not control our analysis of the issue. This case concerns the estate of

a ward under guardianship where the assets of the estate were identified and divided

by agreement by the seven children of the ward. In this regard, we note that appellants

do not argue that imposition of a guardianship for Doña Raquel was error. Moreover, to



                                            20
the extent that appellants’ contentions rely on the factual allegations that any property

at issue in the agreement belonged to Doña Raquel or San Pedro Impulsora, as stated

previously, we note that there is no evidence in the record supporting these allegations.

       Appellants further argue that the arbitrator exceeded his authority in issuing an

award that violates public policy because it requires appellants not to act in the best

interest of their mother. Appellants point out that they lack the ability to determine their

mothers’ residence and state that, under the terms of the award, Doña Raquel cannot

be returned to her home in Mexico until appellants comply with the terms of the award.

       “[A]n arbitration award cannot be set aside on public policy grounds except in an

extraordinary case in which the award clearly violates carefully articulated, fundamental

policy.” CVN Group, 95 S.W.3d at 239. “[A]ny claimed violation of such public policy

must be carefully scrutinized to protect the arbitration award from unwarranted judicial

interference.” Id. Although public policy considerations may underlie the parent-child

relationship, particularly where the parent is under guardianship, we conclude that the

arbitration award in this case did not in any way impugn that relationship. Appellants’

contentions are generally belied by the terms of the agreement and award.              The

agreement contains specific and detailed provisions regarding the care, custody, and

control of Doña Raquel and attempts to ensure that all of her children have access to

her. Moreover, as stated, all parties signed the agreement. The award cannot be said

to “clearly” violate “carefully articulated, fundamental policy.” See id. Accordingly, we

overrule appellants’ second issue.




                                            21
                         VI. CONDUCT OF ARBITRATION HEARING

       In their third issue, appellants assert that the arbitration award must be vacated

because the arbitrator refused to postpone the arbitration hearing after a showing of

sufficient cause and, accordingly, conducted the hearing in a manner that substantially

prejudiced appellants’ rights.   Stated otherwise, appellants contend that the award

should be vacated because the arbitrator refused to postpone the arbitration hearing

even though appellants could not appear. Specifically, appellants assert that they were

unable to attend the arbitration hearing because the trial court’s order granting a

temporary injunction, and a related order enforcing the temporary injunction and issuing

writs of attachment, were under appeal. “Because the writs of attachment had issued,

[appellants] were under threat of arrest and could not enter the United States to

participate in the arbitration hearing.” Appellees, in contrast, assert that this excuse

does not constitute “sufficient cause” to postpone the arbitration.

       In correspondence to the arbitrator, appellants argued that “[i]mproperly obtained

writs of attachment preclude any meaningful arbitration and arbitration should be

continued until [the] interlocutory appeal is decided.” Appellants further stated that:

               As you are aware, [the trial court] issued writs of attachment for my
       client as well as his brother Fernando and Consuelo for supposedly
       violating a temporary injunction, which was granted on June 9, 2008.
       Those writs were issued on June 27, 2008 in contravention of [Texas Rule
       of Appellate Procedure] 29.4 because the temporary injunction was on
       appeal when the judge issued those writs. As I stated in my prior letter of
       August 4, 2008 my client will not appear at a hearing only to be arrested
       when he shows up at your office. Furthermore, attempting to proceed
       with a hearing under these circumstances would subject any potential
       award to being vacated under the provisions of [section] 171.088 of the
       [Texas] Civil Practice and Remedies Code. Therefore we object to the
       hearing and request that it be postponed until such time as the validity of


                                            22
       the injunction and the writs of attachment are decided by the court of
       appeals or supreme court.

       The arbitration proceeded as scheduled on August 18, 2008. Appellants did not

appear at the arbitration; however, their attorneys appeared on their behalf. In the

arbitration award, the arbitrator addressed appellants’ objection to the arbitration as

follows:

       Objection No. 1: Improperly obtained writs of attachment preclude
       any meaningful arbitration and arbitration should be continued until
       interlocutory appeal is decided.

              The Court of Appeals and the Supreme Court have denied any
       temporary relief or stay to the [appellants]. The “ground rules” for the
       Arbitration permitted the [appellants] parties to testify [through] Affidavits.
       The [appellants] did not avail themselves of the opportunity to present,
       [through] their Attorneys, proposals, comments, responses, other
       witnesses, Affidavits or Exhibits (other than Exhibit [Numbers] 1, 2 & 24).
       Objection No. 1 is overruled.

       As stated previously, under the civil practice and remedies code, “the court shall

vacate an award if . . . the arbitrator . . . refused to postpone the hearing after a

showing of sufficient cause for the postponement.” TEX . CIV. PRAC . & REM . CODE ANN . §

171.088(a)(3)(B). In determining what constitutes a “sufficient cause for postponement”

under section 171.088(a)(3)(B), we may examine the grounds a court would find

sufficient to support a motion for continuance in a trial court. Hoggett v. Zimmerman,

63 S.W.3d 807, 811 (Tex. App.–Houston [14th Dist.] 2001, no pet.).

       Texas Rule of Civil Procedure 251 provides that a motion for continuance cannot

be granted “except for sufficient cause supported by affidavit, or by consent of the

parties, or by operation of law.” TEX . R. CIV. P. 251. Appellants have alleged that the

arbitration should have been continued because they were unable to be present.


                                             23
However, a trial court is not required to grant a motion for continuance just because a

party is unable to be present at trial.     Ngo v. Ngo, 133 S.W.3d 688, 693 (Tex.

App.–Corpus Christi 2003, no pet.); Briscoe v. Goodmark Corp., 130 S.W.3d 160, 169

(Tex. App.–El Paso 2003, no pet.); Hawthorne v. Guenther, 917 S.W.2d 924, 929 (Tex.

App.–Houston [1st Dist.] 1996, writ denied); Humphrey v. Ahlschlager, 778 S.W.2d 480,

483 (Tex. App.–Dallas 1989, no writ); Brown v. Brown, 599 S.W.2d 135, 137 (Tex. Civ.

App.–Corpus Christi 1980, no writ). When a continuance is sought because of the

unavailability of a party, we examine Texas Rule of Civil Procedure 252. Hawthorne,

917 S.W.2d at 929. This rule states:

      If the ground of such application be the want of testimony, the party
      applying therefor shall make affidavit that such testimony is material,
      showing the materiality thereof, and that he has used due diligence to
      procure such testimony, stating such diligence, and the cause of failure, if
      known; that such testimony cannot be procured from any other source;
      and, if it be for the absence of a witness, he shall state the name and
      residence of the witness, and what he expects to prove by him; and also
      state that the continuance is not sought for delay only, but that justice may
      be done; provided that, on a first application for a continuance, it shall not
      be necessary to show that the absent testimony cannot be procured from
      any other source.

TEX . R. CIV. P. 252; see Duerr v. Brown, 262 S.W.3d 63, 78-79 (Tex. App.–Houston

[14th Dist] 2008, no pet.) (stating that a movant for continuance based on the need for

testimony must identify the witness and the evidence that the testimony is expected to

demonstrate).

      In requesting that the arbitrator continue the hearing, appellants did not argue

that their presence and testimony at the arbitration was material, they made no offering

of what testimony or evidence they planned to present, and they did not show that any



                                           24
such evidence could not be procured by means other than their attendance at

arbitration.   Further, as stated by the arbitrator, appellants had the opportunity to

present testimony at the arbitration by affidavits, but failed to avail themselves of that

opportunity. Under the foregoing circumstances, we cannot conclude that the arbitrator

abused his discretion in denying appellants’ request to continue the arbitration. We

overrule appellants’ third issue.

                                     VII. CONCLUSION

         Having overruled each of appellants’ issues, we affirm the judgment of the trial

court.


                                                 NELDA V. RODRIGUEZ
                                                 Justice

Delivered and filed the 18th
day of November, 2010.




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