Opinion filed July 2, 2009




                                              In The


   Eleventh Court of Appeals
                                           ___________

                                    No. 11-07-00336-CV
                                        __________

          AVRA OIL COMPANY AND SAEED AFGHAHI, Appellants

                                                 V.

                     EUROLINK PETROLEUM, L.L.C. AND
                    HI-MOUNTAIN ENERGY CORP., Appellees


                             On Appeal from the 118th District Court

                                      Martin County, Texas

                                   Trial Court Cause No. 5578


                             MEMORANDUM OPINION
       Eurolink Petroleum, L.L.C. and Hi-Mountain Energy Corp. brought suit against Avra Oil
Company and Saeed Afghahi alleging several causes of action concerning oil and gas leases in which
the parties were working interest owners. The parties agreed to submit their disputes to arbitration.
The arbitrator found that from May 1, 1998, through September 30, 2001, Avra was the operator of
both the Elizabeth Estes and Woodward C leases pursuant to an oral agreement. The arbitrator
further found that beginning October 1, 2001, Avra had no authority to operate the leases and that
from that date there was no operating agreement in effect. The arbitrator rendered a Corrected
Arbitration Award on September 23, 2004, along with a Corrected Statement of Reasons. The
arbitrator ordered the parties to account to each other in accordance with the Corrected Statement
of Reasons. The trial court entered an order on May 12, 2006, in which the trial court sent the parties
back to arbitration to finalize accounting and calculation of monies owed as of April 30, 2004.
Pursuant to the trial court’s order, the arbitrator issued another arbitration award dated February 12,
2007. Both parties filed a Motion to Confirm the arbitration awards. The trial court held a hearing
on the motions. The trial court entered judgment on August 13, 2007, in which it confirmed the
arbitration award. The trial court ordered appellants to transfer all operations and well and lease
filings with respect to the Estes and Woodward leases to appellees within thirty days from the date
of judgment. We reverse and remand.
        In the first issue on appeal, appellants argue that the trial court erred in ordering a transfer
of operations to appellees when the arbitrator refused to grant such relief. A review of a trial court’s
decision to confirm an arbitration award is de novo, and the appellate court reviews the entire record.
Statewide Remodeling, Inc. v. Williams, 244 S.W.3d 564, 567 (Tex. App.—Dallas 2008, no pet.).
All reasonable presumptions are indulged in favor of the award, and none against it. Id. at 568. An
arbitration award has the same effect as a judgment of a court of last resort, and a court reviewing
the award may not substitute its judgment for that of the arbitrator merely because it would have
reached a different decision. Id.; Bailey & Williams v. Westfall, 727 S.W.2d 86, 90 (Tex.
App.—Dallas 1987, writ ref’d n.r.e). Review of an arbitration award is extraordinarily narrow.
Statewide Remodeling, 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).
        Eurolink and Hi-Mountain are non-operating working interest owners in several oil and gas
leases. Afghahi is the sole shareholder and president of Avra. Avra was the operator of the oil and
gas leases. The leases at issue in this appeal are the Estes and Woodward leases.
        In the Corrected Statement of Reasons, the arbitrator stated:
        I. Claims Concerning the Estes and Woodward Leases.

              A. Do Written Operating Agreements Govern the Estes and Woodward
        Leases?

               No written operating agreement, signed by Eurolink or Hi-Mountain, and
        covering the Estes and Woodward Leases, is in evidence in this Arbitration.

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                 ....

             B. Was There an Oral Agreement for Operation of the Estes and
        Woodward Leases?

                Mr. Langwieser testified that there was a period of time during which he was
        agreeable to Avra operating the Estes and Woodward Leases in the absence of a
        written operating agreement. There is no other evidence in the record of the specific
        terms of that agreement. . . . Accordingly, I find that Avra was the agreed Operator
        of the Estes and Woodward Leases during the period of the oral agreement.

                 ....

                 C. Has Avra Been Removed as Operator?

                There is no evidence in the record of any oral agreement governing operations
        of the Estes and Woodward Leases, other than Mr. Langwieser’s testimony discussed
        above. However, by letter dated August 29, 2001, Eurolink and Hi-Mountain
        notified Avra that they no longer wished for Avra to operate the Estes and Woodward
        Leases. Accordingly, I find that the oral agreement pursuant to which Avra had
        previously operated those leases was no longer enforceable by either Party once the
        August 29 letter became effective. Therefore, Avra has failed to demonstrate any
        contractual authority to operate the Estes and Woodward Leases from and after
        October 1, 2001.

The arbitrator included a footnote stating, “I take judicial notice of a customary thirty-day period for
orderly transfer of operations.”
        The trial court, in its judgment, quoted from the above paragraph in the Corrected Statement
of Reasons regarding the issue of whether Avra has been removed as operator. In its judgment, the
trial court then stated:
                IT IS ORDERED that the arbitrator’s finding with respect to the orderly
        transfer of operations together with the transfer of all operations and well and lease
        files with respect to the Estes and Woodward Leases by [Appellants] to [Appellees]
        is confirmed and such transfer shall occur within thirty days from the date of this
        judgment.

Appellants argue that the trial court, in its judgment, grants more relief than the arbitrator awarded
and that it therefore changed the arbitration award on an issue when the arbitrator had denied relief
on that issue.




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        Although the arbitrator provided that Avra was no longer the operator of the Estes and
Woodward leases, there is no clear statement transferring operations and well and lease files to
Eurolink or Hi-Mountain or to any other entity or person. The arbitrator stated that Avra has no
authority to operate the Estes and Woodward leases after October 1, 2001. In its Corrected
Statement of Reasons, the arbitrator then provided the following law on cotenancy:
             D. Application of Cotenancy Rules to Operation of the Estes and
        Woodward Leases from and after October 1, 2001.

                1. Texas Law.

                In the absence of an operating agreement, common lessees stand in the
        relation of cotenants, with each having the right to explore, drill, produce and market
        oil and gas from the mineral estate without the consent of the other cotenants.

The arbitrator also explained his view of the accounting procedures for cotenants.
        In its May 12 order, the trial court ordered that the parties return to arbitration so that the
arbitrator could settle accounting and payment matters. Before returning to arbitration, Eurolink and
Hi-Mountain sent a letter to the arbitrator in which they detailed the trial court’s May 12 order.
Appellees provided the arbitrator with proposed calculations in the areas requested by the trial court.
Appellees also requested that the arbitrator issue a “directive to transfer operations from Avra to Hi-
Mountain.” In the arbitrator’s February 2007 award, the arbitrator did not order the transfer of
operations; the arbitrator merely noted the customary period for transfer of operations. There is no
modification or clarification specifically transferring operations and well and lease files for the Estes
and Woodward leases to any entity or person. Because there is more than one other owner involved,
we cannot say that, by implication, the arbitrator directed the transfer to any entity or person. This
is more than a mistake in the description of a person or thing; it is a failure to name an operator at
all. See TEX . CIV . PRAC. & REM . CODE ANN . § 171.091(a)(1) (Vernon 2005); Callahan & Assocs.
v. Orangefield Indep. Sch. Dist., 92 S.W.3d 841, 844 (Tex. 2002).
        TEX . CIV . PRAC. & REM . CODE ANN . 171.087 (Vernon 2005) provides that the trial court
shall confirm an arbitrator’s award on the motion of a party unless grounds are offered for vacating,
modifying, or correcting an award under TEX . CIV . PRAC. & REM . CODE ANN . § 171.088 or
§ 171.091 (Vernon 2005). These statutes limit the authority of a trial court to vacate, modify, or


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correct an arbitrator’s award. Callahan & Assocs., 92 S.W.3d at 844. The record does not indicate
a motion to modify or correct the arbitrator’s award was filed. If a matter is submitted to the
arbitrator, a trial court is without authority to modify the arbitrator’s award. Kosty v. S. Shore
Harbour Cmty. Ass’n, 226 S.W.3d 459, 465 (Tex. App.—Houston [1st Dist.] 2006, pet. denied);
Monday v. Cox, 881 S.W.2d 381, 385 (Tex. App.—San Antonio 1994, writ denied). The record
shows that the arbitrator considered the issue of the operator of the Estes and Woodward leases as
indicated by the finding that Avra no longer had contractual authority to operate the leases.
However, the trial court modified the arbitrator’s award by ordering the transfer of operations of the
leases and well and lease files. The trial court erred when it modified the arbitrator’s award.
Appellant’s first issue on appeal is sustained.
        In the second issue on appeal, appellants complain that the trial court erred when it entered
findings of fact and conclusions of law that “Speculated as to the Arbitrator’s Intent, Incorrectly
Characterized the Arbitrator’s Awards, and Incorrectly Concluded That Appellants Were the Parties
Trying to Change Those Awards.” Appellants challenge those findings of fact and conclusions of
law supporting the trial court’s order transferring operations of the Estes and Woodward leases to
Eurolink and Hi-Mountain. Because we find that the trial court erred when it entered an order
transferring operations of the Estes and Woodward leases, we need not address this issue on appeal.
TEX . R. APP . P. 47.1.
        In the third issue on appeal, appellants argue that the trial court erred when it awarded relief
that was inconsistent with the arbitrator’s award on fees and expenses. The trial court ordered that
“[a]ll costs of the Court expended or incurred in this cause are adjudged against Avra Oil Company
and Saeed Afghahi.” The arbitrator’s award provided that, pursuant to TEX . CIV . PRAC. & REM .
CODE ANN . § 171.055 (Vernon 2005), “all costs, fees and expenses of this Arbitration (including the
Arbitrator’s fees and expenses in the amount of $29,446.34) are to be borne one-half by Eurolink
and Hi-Mountain, and one-half by Avra and Afghahi.” The February 12 arbitration award again
provided that each party shall pay one-half of all costs, fees, and expenses of the arbitration. The
February 12 award further provided that such expenses included any additional arbitrator’s fees and
expenses in connection with “any Order in No. 5578: Eurolink Petroleum, L.L.C., and Hi-Mountain




                                                   5
Energy Corp. v. Avra Oil Company and Saeed Afghahi; In the 118th Judicial District Court of
Martin County, Texas.”
        The arbitrator’s awards provided that each party pay one-half of the costs, fees, and expenses
related to the arbitration. The trial court found that the arbitration costs were not included in the
court costs awarded in the judgment. The trial court’s judgment is not inconsistent with the
arbitration award. However, because we find that the trial court erred in ordering the transfer of
operations to Eurolink and Hi-Mountain, we remand this issue for the trial court to reconsider court
costs in light of our holding.
        The judgment of the trial court is reversed, and the cause is remanded.




                                                              JIM R. WRIGHT
                                                              CHIEF JUSTICE


July 2, 2009
Panel consists of: Wright, C.J. and McCall, J.

Strange, J., not participating.




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