                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-17-00704-CV

                                      Russell J.G. AMSBERRY,
                                               Appellant

                                                   v.

                                        Alejandra SALAZAR,
                                              Appellee

                      From the 37th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2011-CI-17196
                            Honorable Angelica Jimenez, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: December 12, 2018

AFFIRMED

           Appellant Russell J.G. Amsberry (“Amsberry”) appeals from the trial court’s entry of final

judgment confirming an arbitration award. We affirm the trial court’s judgment.

                                              Background

           Appellee Alejandra Salazar (“Salazar”) hired Amsberry as her attorney in a divorce and

custody proceeding. Salazar signed a retainer agreement containing a “DISPUTE RESOLUTION”

clause, which stated the parties agreed to resolve any disputes regarding the agreement amicably,

through the Client-Attorney Assistance Program, through mediation, or, if all else fails, through
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“binding arbitration under the rules of the American Arbitration Association (AAA) . . . where

both parties shall bear their respective fees, costs and expenses.”

       The divorce case settled, and a dispute arose between Amsberry and Salazar regarding

Amsberry’s fees. Amsberry intervened in the divorce case and asserted a claim against Salazar for

attorney’s fees. Salazar asserted counterclaims against Amsberry for fraudulent inducement,

breach of fiduciary duty, and violations of the Deceptive Trade Practices Act (DTPA).

       Counsel for the parties executed a Rule 11 agreement stating both parties agreed to mediate

the dispute. The Rule 11 agreement also provided:

               In the event that mediation should not result in a resolution of the matter,
       we further agree that this matter shall be arbitrated. We have not as yet agreed on
       an arbitrator, but can take that up if the mediation is not successful.

               We have further agreed that the arbitration will not be conducted pursuant
       to the FAA rules/provisions but is arbitrable under and subject to the Texas AA
       rules. Further, we have agreed not to use the services of the American Arbitration
       Association.

After mediation was unsuccessful, the parties voluntarily submitted to arbitration. After a hearing,

the arbitrator rendered an award in Salazar’s favor.

       Salazar filed a motion in the trial court to confirm the arbitration award. Amsberry filed a

“Motion to Stay Confirmation of Award and in the Alternative Motion to Modify Arbitration

Award and/or Vacate Award.” The trial court heard both motions simultaneously, confirmed the

arbitration award, and entered a final judgment. Amsberry appeals.

                                            Discussion

       In three issues on appeal, Amsberry argues the trial court erred in confirming the arbitration

award because (1) Salazar was not entitled to an award of attorney’s fees at law or under the

arbitration agreement, (2) the parties did not agree to binding arbitration, and (3) Salazar is

estopped from enforcing the arbitration agreement in the retainer agreement.


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A.     Standard of review

       “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). Upon a party’s application, the trial court shall confirm an arbitration award unless another

party offers grounds for vacating, modifying, or correcting the award under the Texas Arbitration

Act (TAA). Hoskins v. Hoskins, 497 S.W.3d 490, 494 (Tex. 2016) (citing TEX. CIV. PRAC. & REM.

CODE ANN. §§ 171.088, 171.091). The trial court shall vacate an arbitration award if:

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

       (2) a party’s rights were prejudiced by an arbitrator’s evident partiality, corruption,
           or misconduct or willful misbehavior;

       (3) the arbitrator exceeded his powers, refused to postpone the hearing for
           sufficient cause, refused to hear material evidence, or conducted the hearing in
           a manner that substantially prejudiced a party’s rights; or

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

TEX. CIV. PRAC. & REM. CODE ANN. § 171.088(a). A party may avoid confirmation of an

arbitration award only by demonstrating one of these grounds for vacatur. Hoskins, 497 S.W.3d at

495. Even an arbitrator’s “manifest disregard of the law” is not a ground for vacating an arbitration

award. Id. at 494.

B.     Preservation of error

       Before we address the merits of Amsberry’s issues, we must address Salazar’s argument

that Amsberry did not preserve his appellate issues because he failed to properly present statutory

grounds for vacatur to the trial court. “It is abundantly clear that a party seeking to vacate an

arbitration award must present any grounds for doing so to the trial court, otherwise, those

complaints are waived on appeal.” Black v. Shor, 441 S.W.3d 154, 163 (Tex. App.—Corpus


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Christi 2013, pet. denied) (citing TEX. R. APP. P. 33.1); accord Human Biostar, Inc. v. Celltex

Therapeutics Corp., 514 S.W.3d 844, 850 (Tex. App.—Houston [14th Dist.] 2017, pet. denied);

see also Ewing v. Act Catastrophe-Tex. L.C., 375 S.W.3d 545, 549 (Tex. App.—Houston [14th

Dist.] 2012, pet. denied) (holding that because appellant did not raise absence of agreement to

arbitrate in the trial court, he failed to preserve issue for appeal); Henry S. Miller Brokerage, LLC

v. Sanders, No. 05-14-01618-CV, 2015 WL 4600218, at *2 (Tex. App.—Dallas July 31, 2015, no

pet.) (mem. op.) (recognizing rule).

          In his motion to vacate the arbitration award, Amsberry raised only one statutory ground

for vacatur—no agreement to binding arbitration. At the hearing on the motion, Amsberry appears

to have briefly raised a second statutory ground—evident partiality of the arbitrator—albeit

without any evidentiary support. Because these are the only statutory grounds for vacatur raised in

the trial court, Amsberry’s first and third issues are not preserved for appeal. See TEX. R. APP. P.

33.1. 1

C.        Agreement to arbitrate

          In his second issue, Amsberry argues the trial court erred in confirming the arbitration

award because the parties’ Rule 11 agreement does not provide for “binding” arbitration.

          We interpret arbitration agreements using the ordinary principles of contract construction.

Nabors Drilling USA, LP v. Carpenter, 198 S.W.3d 240, 247 (Tex. App.—San Antonio 2006, no

pet.). An arbitration agreement’s language must clearly indicate the parties’ intent to arbitrate but

need not assume any particular form. Id. To determine whether an arbitration agreement is

ambiguous, we examine the agreement as a whole. Id. (citing J.M. Davidson v. Webster, 128



1
 We note that Amsberry’s first and third issues would not be proper grounds for vacatur in any event, since they are
not grounds listed in TAA section 171.088. See Hoskins, 497 S.W.3d at 495 (holding party may not seek vacatur on
any grounds other than the grounds listed in the TAA).

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S.W.3d 223, 229 (Tex. 2003)). An arbitration agreement is not ambiguous if it can be given a

certain or definite legal meaning. Id. (citing SAS Institute, Inc. v. Breitenfeld, 167 S.W.3d 840, 841

(Tex. 2005)).

       Here, neither party argues the Rule 11 agreement is ambiguous. Rather, Amsberry argues

that because the Rule 11 agreement does not expressly provide for “binding” arbitration, it only

provides for non-binding arbitration. “The omission of the term ‘binding’ from an arbitration

agreement does not automatically transform it into a non-binding arbitration agreement.” Id.

(citing Porter & Clements, L.L.P. v. Stone, 935 S.W.2d 217, 222 (Tex. App.—Houston [1st Dist.]

1996, orig. proceeding)). Where, as here, the parties agree to arbitrate pursuant to the TAA,

regardless of whether they expressly agree to “binding” arbitration, they necessarily agree to

binding arbitration because the TAA makes no provision for non-binding arbitration. See Provision

Interactive Techs., Inc. v. Betacorp Mgmt., Inc., No. 03-06-00692-CV, 2008 WL 536688, at *6–7

(Tex. App.—Austin Feb. 28, 2008, no pet.) (mem. op.) (holding agreement in which “the Parties

stipulate to employ Arbitration under the statutes or the Courts of . . . Texas” was agreement to

binding arbitration under the TAA); Stone, 935 S.W.2d at 220–21 (holding agreement in which

“all parties hereby agree that the dispute shall be referred to arbitration by an arbitrator appointed

by the senior United States District Judge for the Southern District of Texas” was agreement to

binding arbitration under the TAA).

       Considering the Rule 11 agreement as a whole, we conclude it unambiguously expresses

the parties’ agreement to submit to binding arbitration under the TAA. Accordingly, Amsberry’s

second issue is overruled.




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                                                                                  04-17-00704-CV


                                           Conclusion

       Because we conclude Amsberry’s first and third issues are not preserved for appeal and his

second issue is overruled, we affirm the trial court’s judgment.

                                                 Marialyn Barnard, Justice




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