                                                                               ACCEPTED
                                                                             01-14-00919
                                                                FIRST COURT OF APPEALS
                                                                        HOUSTON, TEXAS
                                                                    3/12/2015 10:53:32 PM
                                                                      CHRISTOPHER PRINE
                                                                                   CLERK

                NO. 01-14-00919-CV

                                                         FILED IN
                                                  1st COURT OF APPEALS
                  IN THE                              HOUSTON, TEXAS
         FIRST COURT OF APPEALS AT                3/12/2015 10:53:32 PM
              HOUSTON, TEXAS                      CHRISTOPHER A. PRINE
                                                           Clerk


            JUAN A. RUEDA, Appellant

                          vs.

        RANDALL W. HOLLAND, Appellee


   On Appeal from the 11th Judicial District Court of
                Harris County, Texas
   The Honorable Mike D. Miller, Presiding Judge
       Trial Court Case Number 2012-41959



RANDALL W. HOLLAND’S BRIEF ON THE MERITS



                        Kristin Bays
                        State Bar No. 00787914
                        kristin@baysandbays.com
                        J. Randal Bays
                        State Bar No. 01943900
                        randy@baysandbays.com
                        1503 Hailey
                        Conroe, Texas 77301
                        Phone: (936) 760-7670
                        Fax: (936) 760-7671
                        ATTORNEYS FOR RANDALL                      W.
                        HOLLAND

                          -i-
                    IDENTITY OF PARTIES AND COUNSEL

      The following is a complete list of all parties to the trial court’s order that is the
subject of this appeal, as well as the names and addresses of all trial and appellate
counsel:

Juan A. Rueda                                            Appellant and Plaintiff Below
      William H. Luck, Jr.                     Mr. Rueda’s Trial and Appellate Counsel
      Bill. Luck@sbcglobal.net
      1412B Stonehollow Drive
      Houston, Texas 77339
      Phone: 281-358-7611
      Fax: 281-358-0299

Randall W. Holland                                      Appellee and Defendant Below
     Kristin Bays                                      Mr. Holland’s Appellate Counsel
     kristin@baysandbays.com
     J. Randal Bays
     randy@baysandbays.com
     1503 Hailey
     Conroe, Texas 77301
     Phone: 936-760-7670
     Fax: 936-760-7671

       Michael Boltz                                        Mr. Holland’s Trial Counsel
       Boltz@boltzlaw.com
       1400 Woodloch Forest Drive
       The Woodlands, Texas 77380
       Phone: 832-381-3070
       Fax: 832-218-2400

The Honorable Mark Davidson                                                      Arbitrator
     Mark_Davidson@justex.net
     201 Caroline, 17th Floor
     Houston, Texas 77002
     Houston, Texas 77056
     Phone: 713-368-6600


                                            -ii-
Enviro-Grow Nursery, Inc.                                  Defendant below
      Rick L. Hawks                Enviro-Grow Nursery, Inc/’s Trial Counsel
      attomeyrickhawks@gmail.com
      PO Box 1729
      Tomball, Texas 77377-1729
      Phone: 281-251-3198
      Fax: 281-251-1019




                                   -iii-
                                        TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

RECORD CITATION ABBREVIATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

ISSUE PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

         AS A MATTER OF LAW, THE UNSIGNED ARBITRATOR’S
         DRAFT OPINION IS NOT AN ARBITRATION AWARD. . . . . . . . . . . . . 8

         A.       Texas Law Requires A Final Arbitration Award To Be a Signed,
                  Written Document Which Is Delivered to the Parties. . . . . . . . . . . . . . 8

         B.       Until There Is an Arbitration Award, an Arbitrator Is Free to
                  Change His/Her Mind. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21



                                                        -iv-
                                    INDEX OF AUTHORITIES

TEXAS CASES                                                                                                Page

Texas Supreme Court

Austin v. Healthtrust, Inc., 967 S.W.2d 400 (Tex. 1998). . . . . . . . . . . . . . . . . . . . 16

Callahan & Assocs. v. Orangefield Indep. Sch. Dist.,
92 S.W.3d 841 (Tex. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

City of Midland v. O’Bryant, 18 S.W.3d 209 (Tex. 2000). . . . . . . . . . . . . . . . . . . 16

City of San Antonio v. McKenzie Constr. Co.,
136 Tex. 315, 150 S.W.2d 989 (1946).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CVN Group, Inc. v. Delgado, 95 S.W.3d 234 (Tex. 2002). . . . . . . . . . . . . . . . . . . . 7

East Tex. Salt Water Disposal Co. v. Werline, 307 S.W.3d 267 (Tex. 2010). . . . . . 7

Ed Rachal Foundation v. D’Unger, 207 S.W.3d 330(Tex. 2006). . . . . . . . . . . . . . 16

Ritchie v. Rupe, 443 S.W.3d 856 (Tex. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 16

Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993). . . . . . . . . . . . . . . . . . . . . . . . . 16

Texas Courts of Appeals                                                                                    Page

Cooper v. Bushong,
10 S.W.3d 20 (Tex. App. – Austin 1999, pet denied). . . . . . . . . . . . . . . . . . 9-10, 15

In re Chestnut Energy Partners, Inc.,
300 S.W.3d 386 (Tex. App. – Dallas 2009, pet. denied). . . . . . . . . . . . . . . . . . . . . . 7

Sydow v. Verner, Liipfert, Bernhard, McPherson and Hand, Chartered,
218 S.W.3d 162 (Tex. App. – Houston [14th Dist.] 2007, no pet.). . . . . . . . . . 17-18



                                                       -v-
TEXAS STATUTES and RULES                                                                                             Page

TEX. CIV. PRAC. & REM. CODE §171.041. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

TEX. CIV. PRAC. & REM. CODE §171.053(a). . . . . . . . . . . . . . . . . . 5, 8, 9, 11, 14, 15

TEX. CIV. PRAC. & REM. CODE §171.053(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

TEX. CIV. PRAC. & REM. CODE §171.054(a)(1). . . . . . . . . . . . . . . . . . . . . . 17, 19 n.3

TEX. CIV. PRAC. & REM. CODE §171.087. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TEX. CIV. PRAC. & REM. CODE §171.088. . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 13-14

TEX. CIV. PRAC. & REM. CODE §171.091. . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 19 n.3

TEX. CIV. PRAC. & REM. CODE §171.098(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7

AMERICAN ARBITRATION ASSOCIATION RULES                                                                               Page

Rule R-40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Rule R-46. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6, 8, 9, 12, 14, 15

Rule R-49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Rule R-50. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

FEDERAL CASES                                                                                           Page
AO Techsnabexport v. Globe Nuclear Servs. & Supply CNSS,
404 Fed. Appx. 793 (4th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

A/S Siljestad v. Hideca Trading, Inc.,
678 F.2d 391 (2d Cir. 1982) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Florasynth, Inc. v. Pickholz, 750 F.2d 171 (2d Cir. 1984). . . . . . . . . . . . . . . . . . . . 7

Michaels v. Mariforum Shipping, S.A., 624 F.2d 411 (2d Cir. 1980). . . . . . . . . . . 10

                                                            -vi-
                   RECORD CITATION ABBREVIATIONS

      “CR” refers to citations from the Clerk’s Record. The number immediately
following “CR” is the page of the Record.

      “RR” refers to citations from the Reporter’s Record. The number immediately
following “RR” is the page of the Record.

                          STATEMENT OF THE CASE

      This case is an appeal from a trial court take nothing judgment (CR221),

rendered as a result of the confirmation of the “FINAL AWARD OF

ARBITRATOR”, signed by Judge Mark Davidson (the Arbitrator) on July 9, 2014

(CR151-52). The Arbitrator attached to his “FINAL AWARD OF ARBITRATOR”

a draft of an opinion entitled “FINAL AWARD OF ARBITRATOR – NOT SIGNED

OR ADOPTED” which gave Appellant a money judgment (CR153-56). On October

7, 2014, Appellee requested that the trial court confirm by judgment the “FINAL

AWARD OF ARBITRATOR” (CR107-110). Appellant contested such motion on the

theory that the draft opinion should be treated as the final arbitration award (CR140-

44). The trial court signed a judgment confirming the “FINAL AWARD OF

ARBITRATOR” (CR221). On November 14, 2014, Appellant filed his Notice of

Appeal (CR229-31).




                                         -vii-
                               ISSUE PRESENTED

1.    The trial court did not err in signing a judgment based upon the only award

signed by the Arbitrator because Texas law requires an arbitration award to be signed

and a trial court to confirm an arbitration award, but the trial court would have erred

by signing a judgment based upon the preliminary draft opinion which was never

signed, never delivered, and never adopted.




                                         -viii-
                             STATEMENT OF FACTS

      Appellant Juan A. Rueda (“Rueda”) and Appellee Randall W. Holland

(“Holland”) were shareholders in a nursery business called Enviro-Grow Nursery,

Inc., with Rueda holding a 49% interest and Holland holding a 51% interest (CR153).

On July 23, 2012, Rueda sued Holland for minority shareholder oppression (CR5-11).

Holland invoked the parties’ 1995 arbitration agreement (CR14-19), and, on July 31,

2013, the trial court abated the case and ordered the parties to arbitration through the

American Arbitration Association (“AAA”) (CR106).

      Acting as the sole arbitrator, The Honorable Judge Mark Davidson

(“Arbitrator”) considered the case at an arbitration trial which occurred on May 7,

2014 and June 5, 2014 (CR151). After completing the arbitration trial, the Arbitrator

indicated he was going to rule by June 26, 2014 (RR1:10/10-12). Just two days before

that (on June 24, 2014), Holland’s counsel discovered the Supreme Court’s recent

Ritchie v. Rupe, 443 S.W.3d 856 (Tex. 2014) opinion, and immediately filed a brief

with the Arbitrator to advise that Ritchie eliminated Rueda’s cause of action for

shareholder oppression (RR1:10/13-16).

      The next day (June 25, 2014), the Arbitrator re-opened the arbitration with no

objections to his doing so (see RR1:12/10-11; RR1:10/17-18). The Arbitrator called




                                      Page 1 of 21
for briefing on Ritchie1 (RR1:12/12-13), then, on July 9, 2014, the Arbitrator signed

the “FINAL AWARD OF ARBITRATOR” holding that Rueda take nothing based

upon the Ritchie opinion (“Award”) (CR151-52).

         The Arbitrator sent to the AAA his Award with an attachment, that being a draft

of an opinion entitled “FINAL AWARD OF ARBITRATOR – NOT SIGNED OR

ADOPTED”(“Draft”) (CR153-56). The AAA administrator delivered the Award and

its attachment to the parties, explaining:

         Attached is the duly executed Award in the above matter [the Award].
         Judge Davidson has also asked me to forward his original ruling which
         was drafted prior to the Richie v. Rupe decision and which was
         supplanted by the final Award [the Draft]. (CR145 (emphasis supplied)).

The Draft never saw the light of day except as an attachment to the Award.2 So why

did the Arbitrator attach a draft to his award? It was to explain why he ruled against

Holland on his frivolous lawsuit claim:

         I attach the ruling I had written and submitted to the AAA the day
         before Richie v. Rupe was announced by the Texas Supreme Court.
         The Richie case, by its terms, overruled years of precedents from the
         Courts of Appeals that created a common law cause of action for


1
    The Arbitrator refers to this opinion as “Richie”, instead of “Ritchie”.
2
   CR145 (Luck affidavit: “Attached as Exhibit “2” [CR147-50] and as Exhibit “3” [CR151-56] are
the two decisions from Judge Mark Davidson that were both attached to Ms. Kidd’s [AAA’s
administrator] July 9, 2014 e-mail.”); RR1:4/21-5/1 (Mr. Luck: AAA administrator sent both the
Award and Draft simultaneously); RR1:7/7-14 (“The Court: On the day that you [Rueda] contend
it [the Draft] became final, what did you get? Did you get a fax, a piece of paper, an e-mail? What
did you get? Anything? Mr. Luck: Nothing that day. It was when he – on July 9...Got them both
at the same time.”).

                                             Page 2 of 21
      shareholder oppression. My preliminary opinion, as you will see,
      awarded the Claimant [Rueda] a judgment on that theory. The Richie
      case takes away that theory, and his judgment.
                                       *****
      The Respondent [Holland] has countered for his attorney’s fees, claiming
      that this is a frivolous claim. First, but for the timing of the Richie
      opinion, he would have a judgment entered against him. Second, I was
      aware of the Court of Appeals opinion, and, relied, in part, on it for the
      reasoning of my preliminary opinion. The Claimant relied on existing
      case law. That defeats a claim of a frivolous claim as a matter of law.
      (CR151-52 (emphasis in original)).

      Once Rueda lost, he grabbed on to the Draft like a life raft. On July 10, 2014,

he filed a motion with the Arbitrator to disregard the Award, insisting that the Draft

was complete in all respects except for being signed, and, because it preceded the

Award, it was the arbitration award (RR1:10/20-21). The Arbitrator was succinct in

his denial of that motion:

      I will give it to you right now.
             “The motion to Disregard and withdraw the Arbitrator’s
             Award is denied. The transmittal of a draft of a preliminary
             opinion that was never adopted, signed or sent to all
             counsel is not a binding ruling. Claimant’s [Rueda’s]
             motion is without merit, and is respectfully denied.”
      and Have a Great Day!
      Mark Davidson

(CR209). In that same vein, the Arbitrator explained via the title he chose for the

Draft that it was “NOT SIGNED OR ADOPTED” (CR153). He characterized the

Draft in the Award as being a “preliminary opinion” (i.e., not a final one) (CR151).

He drafted a letter which embodied his preliminary opinion and concluded with a

                                     Page 3 of 21
typewritten “Respectfully submitted” and a typewritten “MARK DAVIDSON”

(CR147-50), but the large space where his signature would go was left blank (CR150;

RR1:1/6-19). The Arbitrator was clear – the Draft was not an arbitration award, but

was, instead, his initial pre-Ritchie impression, never signed or adopted, and used only

as an attachment to his Award in order to explain why Rueda’s claims were not

frivolous (CR146; CR151; CR153; CR209).

      Rueda tried again with the trial court to eliminate the Award (CR140-218), but,

again, met with no success (RR1:14). The trial court was especially focused on the

fact that the Draft was not signed:

      THE COURT: [A]pparently Davidson said, well, in his mind anyway
                 the initial version was a draft....[I]t doesn’t say
                 electronically signed by?

      MR. LUCK:  It doesn’t say that, Judge. (RR1:4/5-9)
                                   *****
      MR. BOLTZ: Your honor, the controlling law in this would be the
                 rules of the American Arbitration Association...Rule 46
                 it requires for a formal award to be in writing and must
                 be signed by the arbitrator.

      THE COURT: ...The question is when was the award made. Then R-
                 46, form of award: any award shall be in writing and
                 signed by the majority of the arbitrators. (RR1:11/8-19)
                                   *****
      THE COURT: He didn’t sign it. (RR1:12/9)
                                   *****
      THE COURT: ...Was it in writing? Yes. Was it signed? No. That is
                 what it [Rule R-46] says: Any award shall be in writing
                 and signed by the majority of the arbitrators.

                                      Page 4 of 21
                      (RR1:12/14-18)
                                  *****
      THE COURT: R-46 is pretty clear: Shall be in writing and signed by
                 the majority of the arbitrators. (RR1:13/1-2)
                                  *****
      THE COURT: [T]he rule is pretty specific, it has to be signed, and that
                 [Draft] was not signed. I think, therefore – it is
                 unbelievably bad luck....I think without that signature it
                 wasn’t a final award. (RR1:14/15-22)

Being convinced that a signature was required, the trial court signed the Judgment

confirming the only signed Award (RR1:15/9-10):

      [T]he Court enters judgment in accordance with the Final Award [of]
      Arbitrator signed by Mark Davidson on July 9, 2014.

(CR221 – the italicized words are handwritten by the trial court in the Judgment).

                      SUMMARY OF THE ARGUMENT

                   It may be an interesting appellate issue....
              They will say, well, the rule requires that it be signed.
                  It wasn’t signed. Therefore, it wasn’t final.
                                    We are done.
                    – Judge Mike D. Miller (RR1:14/22-15/1)

      The question in this case is simple – Was the Arbitrator’s Draft an arbitration

award on the merits which could not be changed and which should have been

confirmed in a judgment? The answer is equally simple – No.

      Rueda calls the Draft “complete in all respects, with the exception of being

signed by the [A]rbitrator.” That exception makes all the difference. Both Texas

Civil Practice and Remedies Code Section 171.053(a) and AAA Rule R-46 require

                                    Page 5 of 21
a final arbitration award to be signed in order to be an arbitration award. So when, as

here, the Arbitrator wrote a “draft” of a “preliminary opinion”, which was not

delivered to counsel, was not delivered to the parties, and was “not signed or

adopted”, then that draft is just a draft; it is not an arbitration award for purposes of

judgment rendition. And when, as here, the Arbitrator signs, dates, and delivers to the

parties a written award entitled “FINAL AWARD OF ARBITRATOR”, then that is

the arbitration award on which judgment must be rendered – and it was.

      Rueda asks this Court, as he previously unsuccessfully asked the Arbitrator and

trial court, to reject the signature requirements of both the AAA Rules and the Code

because he “believes” that requiring a signature is simply too onerous. The Court

should not use Rueda’s “belie[f]” to change the statute and give Rueda a money

judgment on a cause of action which does not exist.

      Nothing went wrong here. The Arbitrator signed, dated, and delivered one

arbitration award, as the law requires. The trial court confirmed it in the Judgment,

as the law requires. And this Court should affirm that Judgment, as the law requires.

                             STANDARD OF REVIEW

                 Was it in writing? Yes. Was it signed? No.
                        That is what it [Rule R-46] says:
   Any award shall be in writing and signed by the majority of the arbitrators.
                    – Judge Mike D. Miller (RR1:12/14-18)

      This Court has jurisdiction over this appeal (TEX. CIV. PRAC. & REM. CODE

                                      Page 6 of 21
§171.098(a)(3)), but review of an arbitration award is “extraordinarily narrow”. East

Tex. Salt Water Disposal Co. v. Werline, 307 S.W.3d 267, 271 (Tex. 2010). “‘All

reasonable presumptions are indulged in favor of the award, and none against it.’”

CVN Group, Inc. v. Delgado, 95 S.W.3d 234, 238 (Tex. 2002) (quoting City of San

Antonio v. McKenzie Constr. Co., 136 Tex. 315, 150 S.W.2d 989, 996 (1946)); see

Florasynth, Inc. v. Pickholz, 750 F.2d 171, 176 (2d Cir. 1984) (“The confirmation of

an arbitration award is a summary proceeding that merely makes what is already a

final arbitration award a judgment of the court”). This Court reviews the trial court’s

confirmation of the award de novo. In re Chestnut Ener. Partners, Inc., 300 S.W.3d

386, 397 (Tex. App. – Dallas 2009, pet. denied).

      The Texas Arbitration Act requires a court to confirm an arbitrator’s award

unless a party offers one of the statutory grounds under Section 171.088 (arbitrator

misconduct) or Section 171.091 (correction of clerical errors) for vacating, modifying,

or correcting the award. TEX. CIV. PRAC. & REM. CODE §§171.087, 171.088(a), and

171.091(a); see Callahan & Assocs. v. Orangefield Indep. Sch. Dist., 92 S.W.3d 841,

844 (Tex. 2002). The only ground Rueda has ever offered for vacating the Award is

his claim that the Arbitrator exceeded his powers as a result of making a decision then

changing his mind. TEX. CIV. PRAC. & REM. CODE §171.088(a)(3)(A) (“the court

shall vacate an award if...the arbitrators...exceeded their powers”). So if the Draft was


                                      Page 7 of 21
an arbitration award, then the Arbitrator was not permitted to change its substance via

the Award; but if it was not (and it was not), then the Arbitrator acted within his

authority, did not exceed his powers, and this “extraordinarily narrow” appeal will end

in an affirmation of the Judgment.

                                     ARGUMENT

     AS A MATTER OF LAW, THE UNSIGNED ARBITRATOR’S DRAFT
             OPINION IS NOT AN ARBITRATION AWARD

       While Rueda’s complaint in this appeal is that the trial court erred in “entering

a judgment on the second decision of the [A]rbitrator” (see Appellant’s Brief at 8), the

reality is that, per Texas law and the AAA Rules, there was only a first decision of the

Arbitrator – the Award.

A.     Texas Law Requires A Final Arbitration Award To Be a Signed, Written
       Document Which Is Delivered to the Parties.

                 Until I sign it and it gets entered, it is not effective....
                                [T]he rule is pretty specific,
                       it has to be signed, and that was not signed.
                     I think, therefore – it is unbelievably bad luck.
              ....I think without that signature it wasn’t a final award.
                          – Judge Mike D. Miller (RR1:14/15-22)

       Rueda cites AAA Rule R-46 and Civil Practice and Remedies Code Section

171.053(a), and concludes, “neither...state anywhere” that “a decision is not a binding

decision of the arbitrator if the formality of the signing of the decision is not done.”

See Appellant’s Brief at 12-13. But, in fact, that is exactly what they both state.

                                       Page 8 of 21
Rule R-46:                       Any award shall be in writing and signed by a
                                 majority of the arbitrators.

CR183 (Rule R-46 of the AAA Commercial Rules) (emphasis supplied). This

arbitration had but one arbitrator, so the majority would be one – and that majority of

one did not sign the Draft (CR153-56; CR147-50). He did, however, sign the Award

(CR151).

Texas Arbitration Act:           The arbitrators’ award must be in writing and
                                 signed by each arbitrator joining in the award.

TEX. CIV. PRAC. & REM. CODE §171.053(a) (emphasis supplied). Again, this

arbitration had but one arbitrator, so each arbitrator joining in the award would be one

– and that one did not sign the Draft (CR153-56; CR147-50). He did, however, sign

the Award (CR151).

      That statutory signature requirement is not optional; it is required in order to

make an award valid:

       Arbitrator’s Award – Existence of a Valid Arbitration Agreement
      Cooper first contends that there is not a valid arbitration award
      terminating Bushong’s parental rights because the award is not in writing
      or signed by the arbitrator. See TEX. CIV. PRAC. & REM. CODE ANN.
      §171.053 (West Supp. 1999) (hereinafter “General Arbitration Act”)
      (arbitrator’s award must be in writing and signed by
      arbitrator)....However, the record reflects that the arbitrator signed an
      award entitled “Arbitration Decision and Award,” which was filed on
      December 1, 1997....Thus, we find these claims to be without merit.

Cooper v. Bushong, 10 S.W.3d 20, 24 (Tex. App. – Austin 1999, pet denied)


                                      Page 9 of 21
(emphasis supplied); see also id. at 24 n.10 (“Cooper’s attorney stated at the hearing

before the district court, ‘we have his [the arbitrator’s] findings in writing.’”).

      But the required signature is not the only thing missing from the Draft. It was

also never delivered to the parties (CR209), with delivery being another requirement

of the Code (TEX. CIV. PRAC. & REM. CODE §171.053(b) (“The arbitrators shall

deliver a copy of the award to each party personally, by registered or certified mail,

or as provided in the agreement.”); Cooper, 10 S.W.3d at 24 (“arbitrator shall deliver

a copy of the award to each party”)) and the AAA Rules (see CR184 (Rule R-49)).

Although the AAA administrator did deliver the Draft, she did so only as an

attachment to the Award, not as an award itself. The only award she sent was “the

duly executed Award in the above matter”– i.e., the Award (CR146).

      Those signature and delivery requirements are no small thing. They are

designed to make sure that the trial court – and this Court – have the final word on

what the Arbitrator intended to be his final word. “In order to be ‘final,’ an arbitration

award must be intended by the arbitrators to be their complete determination of all

claims submitted to them”. Michaels v. Mariforum Shipping, S.A., 624 F.2d 411,

413-14 (2d Cir. 1980) (discussing FAA); A/S Siljestad v. Hideca Trading, Inc., 678

F.2d 391, 392 (2d Cir. 1982) (per curiam) (same). Thus, an arbitrator’s identification

of the arbitration award is critical; the key is when the transformation from “I-think-


                                      Page 10 of 21
I’m-gonna” to “I-have” occurs, and that transformation occurs wholly within an

arbitrator’s mind until the arbitrator puts it in writing, signs his/her name to it, and

delivers it. TEX. CIV. PRAC. & REM. CODE §171.053(a).

      That appears to have happened with this Arbitrator. There was a time when he

thought Rueda won and he wrote the Draft to that effect (CR147-50; CR153-56). But

before he adopted it, signed it, or delivered it, he changed his mind – as judges

sometimes do (see, e.g., RR1:14/15-16). He then wrote a new Award, and he adopted

it, signed it, and delivered it (CR146; CR151-52; CR209), forever leaving the Draft

in the “I-think-I’m-gonna” phase.

      Interestingly, Rueda’s entire argument is cast in terms of assuming the Draft

was the Arbitrator’s first decision and contending the decision-which-comes-first-is-

the-arbitration-award. See Appellant’s Brief at 8. But the record does not actually

reveal that the Draft was the first decision. It might have been, or it might have been

the third decision, or maybe the sixth. The only thing the record actually reveals is

that the Draft preceded the Award, but it might not have even immediately preceded

the Award – there might have been another decision between the two.

      That is precisely why, from a policy perspective, Rueda’s position is

unworkable. As is the law in Texas, a rule that says the award is the one which is

signed and delivered makes the identification of the award obvious, definite, and


                                     Page 11 of 21
objective. In contrast, a rule that says the award is the arbitrator’s first decision makes

the identification of the award obscure, uncertain, and subjective. With this latter rule,

parties and courts would be forced to subpoena arbitrators and their records, and

evaluate arbitrators’ deliberations, in order to identify what was the first decision.

And even that would lead to debates about when a thought becomes a decision, and

whether an arbitrator had decided or was just playing devil’s advocate. A whole

world of expert testimony would be born, as would a new legal speciality – arbitrator

psychology. Rueda’s rule would be the Lawyers’ Full Employment Act.

       Instead, this Court should stick to the Texas Legislature’s rule which is much

easier to manage, require no subpoenas, experts, or arbitration-psychology attorneys,

and turns on one simple question: Which one is signed? This approach avoids

Rueda’s ill-advised level of intrusion, and leaves the question of whether the Draft

came first in the realm of mystery. The Draft could only have become an arbitration

award if it was adopted, delivered, and, most importantly, signed. It was none of

those things, so it is not – and never was – an award.

       Strangely, Rueda has already conceded this very point:

       THE COURT: Let me see that. The hearing may be reopened on the
                  arbitrator’s initiative at any time before the award
                  is made [quoting Rule R-40 (CR181)]. The question is
                  when was the award made. Then R-46, form of award:
                  Any award shall be in writing and signed by the
                  majority of the arbitrators (RR1:11/13-19).

                                      Page 12 of 21
                                  *****
      MR. LUCK: That first one [the Draft] was sent. I have no problem –
      THE COURT: He didn’t sign it.
      MR. LUCK: I have no problem with his having authority to
                 reopen. At the time he asked us to reopen he asked
                 me to respond to Richie. I didn’t know he had
                 already decided (RR1:12/7-13).

Rueda has admitted the Draft was not an award. AAA Rule R-40 says the Arbitrator

may reopen the arbitration “at any time before the award is made” (CR181 at R-40),

the Arbitrator reopened after learning about the Ritchie opinion (RR110/17-18), ergo

he had not made an award at that time, which Rueda admits when he says he has “no

problem with his having authority to reopen” (RR1:12/10-13). Rueda’s real

complaint is that he didn’t know the Arbitrator had made a decision, but whether he

made a decision is of no consequence – all that matters if whether he had made that

decision into an award. Rueda conceded that he hadn’t.

      Knowing the law is against him, Rueda tries to distance himself from the

signature requirement, which, he claims, is applicable only to cases involving multiple

arbitrators, not to this single arbitrator case. See Appellant’s Brief at 12-13. If Rueda

is right, then he loses the appeal. His only basis to vacate the Award is that the

Arbitrator exceeded his authority, but, if the use of the plural precludes application to

the singular, then the statute is inapplicable to this Arbitrator. TEX. CIV. PRAC. &

REM. CODE §171.088(a)(3)(A) (“the court shall vacate an award if...the


                                     Page 13 of 21
arbitrators...exceeded their powers”). Admittedly, this argument is absurd, which is

why Holland would not make it. Unfortunately, Rueda shows no such restraint.

      Rueda’s argument is wrong. Section 171.053 requires “each arbitrator [who]

join[s] in the award” to sign (TEX. CIV. PRAC. & REM. CODE §171.053(a)), and Rule

R-46 requires “a majority of the arbitrators” to sign (CR183 at Rule R-46). These

provisions pay no heed to how many arbitrators there are, and do not suggest that the

signature requirement does not apply to a single arbitrator case. All they do is

describe that those in agreement, however many “those” are, must sign. The Code

expressly contemplates single arbitrator cases, and makes no distinction as to the

requirements of Chapter 171 based upon the number of arbitrators. See, e.g., TEX.

CIV. PRAC. & REM. CODE §171.041(b) (“The court, on application of a party...shall

appoint one or more qualified arbitrators...”); id. at §171.041(c) (“An arbitrator

[singular] appointed under Subsection (b) has the powers of an arbitrator [singular]

named in the agreement to arbitrate.”).

      And, realistically, what would be the logic of requiring many arbitrators to sign

but not a single arbitrator? The idea of having signatures is to confirm what the award

is; the number of arbitrators making the award is immaterial to that objective.

Whether one or many, arbitrators are bound by the tenets of Chapter 171, including

the requirement that those who join in an award must sign it. TEX. CIV. PRAC. & REM.


                                     Page 14 of 21
CODE §171.053(a); Cooper, 10 S.W.3d 20, 24.

      Undaunted, Rueda asks this Court to make new law. He asks this Court to

ignore the signature requirement because he “believes” it is an unnecessary

“formality”:

      Rueda believes that requiring a single arbitrator arbitration decision to
      be signed by the arbitrator in order for the decision to be considered as
      the arbitrator’s decision (when neither the Commercial Rules of the
      AAA nor Chapter 171 of the Texas Civil Practice & Remedies Code
      states this) would be adding a level of judicial-type formality to the
      arbitration process (making this a requirement would be similar to a
      judgment in a court of law) – and this type of formality is exactly what
      the arbitration process by its very nature is intended to avoid.

See Appellant’s Brief at 13. What Rueda “believes” is irrelevant compared to what

the Texas Legislature and the AAA require. In fact, Rueda cites no authority for the

proposition that requiring a signature on an award is the “type of formality...the

arbitration process...is intended to avoid”. There is a reason for that – no such

authority exists. In fact, the Texas Arbitration Act, which defines “the arbitration

process”, explicitly includes this signature requirement. TEX. CIV. PRAC. & REM. CODE

§171.053(a).

      Accepting Rueda’s position would require the Court to change the law to say

the signature requirement in Section 171.053 (and Rule R-46) is no requirement at all.

That would be unwarranted, especially given the Supreme Court’s requirement in

Ritchie that courts exercise great restraint as to making new law in areas covered by

                                    Page 15 of 21
statute:

       The Legislature has crafted a statutory scheme governing domestic
       corporations [or, in this case, arbitration]. The statutes are detailed
       and extensive, reflecting legislative policy judgments about when the
       government should step in to impose rights and obligations on the
       parties and when the parties should be free to dictate their own
       rights and obligations vis-à-vis each other and the business. This
       Court has the prerogative to superimpose a common-law cause of
       action upon this statutory framework – though not to alter or
       contravene the statutory framework – but we exercise that power
       sparingly, careful not to upset the Legislative balance of policies, and
       only when warranted by a genuine need. See, e.g., [Ed Rachal
       Foundation v.] D’Unger, 207 S.W.3d [330] at 331 [(Tex. 2006)]; [City
       of Midland v.] O’Bryant, 18 S.W.3d [209] at 216 [(Tex. 2000)]; Austin,
       [v. Healthtrust, Inc.], 967 S.W.2d [400] at 401 [(Tex. 1998)]; see also
       Twyman [v. Twyman], 855 S.W.2d [619] at 630 [(Tex. 1993)] (Hecht, J.,
       joined by Enoch, J., concurring in part and dissenting in part) (“This
       Court, as steward of the common law, possesses the power to recognize
       new causes of action, but the mere existence of that power cannot justify
       its exercise. There must be well-considered, even compelling grounds
       for changing the law so significantly. Where, as here, no such grounds
       are given, the decision is more an exercise of will than of reason.”). We
       find no such necessity here, and therefore decline to recognize a
       common-law cause of action for “shareholder oppression.”

Ritchie v. Rupe, 443 S.W.3d 856, 891 (Tex. 2014) (emphasis supplied).

       The situation in Ritchie applies here in three ways: (1) It applies to eliminate

Rueda’s claimed cause of action in its entirety, so that Rueda’s attempt to have this

Court allow him a cause of action which the Supreme Court says does not exist should

fail; (2) It applies to address the fact that the common law cannot be used to “alter or

contravene” a statute, so that his attempt to have this Court alter and contravene the


                                     Page 16 of 21
statutory requirements of signing and delivering an arbitration award should fail; and

(3) It applies to show that before imposing any change to the law, there must be a

necessity to do so, so that his attempt to have this Court create a common law holding

that whatever decision an arbitrator makes first constitutes the final arbitration award

is hardly necessary – it is, in fact, ill-advised and should fail.

       If Ritchie had not happened, Rueda might have won. But Ritchie did happen,

and it happened before the Arbitrator had signed and adopted an arbitration award,

such that the Arbitrator complied with Texas law and gave Rueda nothing on his now

non-existent shareholder oppression claim. Rueda does not like that, and who can

blame him? But nothing legally impermissible happened. Rueda seeks an outcome

where he is permitted to recover on a non-existent cause of action – but the law does

not provide him such.

B.     Until There Is an Arbitration Award, an Arbitrator Is Free to Change
       His/Her Mind.

                          THE COURT: Which is the one?
                        MR. BOLTZ: The one that says: Final.
                                 (RR1:7/25-8/2)

       When an arbitration award is made – that is to say when the arbitrator adopts

a decision, signs it, and delivers it – he/she cannot change its substance. TEX. CIV.

PRAC. & REM. CODE §171.054(a)(1); Rule R-50 (CR184); Sydow v. Verner, Liipfert,

Bernhard, McPherson and Hand, Chartered, 218 S.W.3d 162, 169 (Tex. App. –

                                       Page 17 of 21
Houston [14th Dist.] 2007, no pet.). But while an arbitrator is deciding, contemplating,

considering, thinking about it, and mulling it over, he/she is without constraints to

change, adapt, vacate, make adjustments and change his/her mind. It is only once

he/she settles on a decision and affixes his/her signature to it that the deal is done –

no take backs. It is on this point that Rueda’s appeal turns because he claims that the

Draft was the arbitration award, such that the Award could not supplant it without

violating the finality laws. But it was not an arbitration award, as discussed at length

in (A), supra, such that the Arbitrator was free to change it as much and as often as

he chose without exceeding his authority.

      Here, the Award was the arbitration award, and it was never changed in any

way. Because there was no change to the arbitration award, the Arbitrator did not

overstep his bounds, leaving the trial court with no grounds to do anything other than

what it did – confirm the award.

      The problem is that Rueda’s entire Brief describes a situation which does not

exist in this case. Here, the Arbitrator made only one award; he was originally headed

in a direction different from the one he ultimately took, but he changed his mind

prior to making an award, and that he is permitted to do (compare CR151 to

CR153-56). Rueda’s entire pitch is that the Arbitrator had no power to change his

mind, but he does. He only loses that power after he has made a final (a/k/a signed)


                                     Page 18 of 21
decision. See, e.g., AO Techsnabexport v. Globe Nuclear Servs. & Supply CNSS, 404

Fed. Appx. 793, 799 (4th Cir. 2010) (“arbitrators complete their function and lose their

authority to act after making a final determination on a matter. This principle, known

as the doctrine of functus officio, prevents an arbitrator from reexamining the merits

of a final award.”) (emphasis supplied).

       There is no law precluding the Arbitrator from changing his mind; the law only

precludes him from changing his decision once it if formalized in an award3 – which

didn’t happen here (CR151-52). In the Judgment, the trial court did not use some

vague reference to “an” arbitration award; it very deliberately entered its Judgment

with reference to a particular title of a particular document of a particular date which

the Arbitrator signed and which he said expressly was his final decision (compare

CR221 to CR151-52; RR1:15/9-10). This Court should decline to deviate from this

correct course to, instead, create new law which both                  contravenes the Texas

Arbitration Act and defies the Ritchie ruling. Instead, this Court should affirm.




3
 TEX. CIV. PRAC. & REM. CODE §171.054 (a)(1) (an arbitrator has authority to “…modify or correct
an award…on the grounds stated in Section 171.091…”); id. at §171.091 (can modify or correct
award if it “contains...an evident miscalculation of numbers” or “an evident mistake in the
description of a person, thing, or property referred to in the award”; or if the arbitrator made an
award on something not submitted, but only if “the award may be corrected without affecting the
merits of the decision made with respect to the issues that were submitted”; or “the form of the
award is imperfect in a manner not affecting the merits of the controversy.”).

                                          Page 19 of 21
                             PRAYER FOR RELIEF

      For the reasons in this Brief, Randall W. Holland respectfully requests this

Court affirm the Judgment, and award him all such other relief to which he is entitled.

                                        Respectfully submitted,
                                        BAYS & BAYS
                                        1503 Hailey
                                        Conroe, Texas 77301
                                        Phone: (936) 760-7670
                                        Fax: (936) 760-7671
                                                /s/ Kristin Bays
                                        Kristin Bays
                                        State Bar No. 00787914
                                        kristin@baysandbays.com
                                        J. Randal Bays
                                        State Bar No. 01943900
                                        randy@baysandbays.com
                                        ATTORNEYS FOR RANDALL                      W.
                                        HOLLAND

                       CERTIFICATE OF COMPLIANCE

       Pursuant to Rule 9.4(i), I certify that this Brief was computer-drafted with
WordPerfect using Times New Roman font, with 14 point font for the text and 12
point font for the footnotes. I further certify that the word count, as generated by
WordPerfect, for every word and every part of this Brief, including headings,
footnotes, and quotations, was counted except for the following:
       the caption, the identity of parties and counsel, the table of contents, the
       index of authorities, the statement of the case, the statement of the issue
       presented, the signature, the proof of service, the certification, this
       certificate of compliance, and the appendix
total 4,948 words.
                                                  /s/ Kristin Bays
                                          Kristin Bays



                                     Page 20 of 21
                        CERTIFICATE OF SERVICE

      This certifies that the undersigned served Randall W. Holland’s Brief on the
Merits on the following counsel of record by e-service on March 12, 2015:
      William H. Luck, Jr.
      Bill. Luck@sbcglobal.net
      1412B Stonehollow Drive
      Houston, Texas 77339
      Lead Counsel for Appellant

                                             /s/ Kristin Bays
                                     Kristin Bays




                                  Page 21 of 21
