Opinion
No. 04-17-00241-CV
01-03-2018
SHOPOFF ADVISORS, L.P., Appellant v. ATRIUM CIRCLE, GP, et al., Appellees
MEMORANDUM OPINION
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CI04489
Honorable Antonia Arteaga, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice AFFIRMED AS MODIFIED
Shopoff Advisors, L.P. appeals the trial court's judgment confirming an arbitration award. Shopoff contends the trial court erred by granting the appellees' motion to confirm the arbitration award without considering its pending motion to vacate. Shopoff also contends the trial court erred by entering a judgment that does not conform to the arbitration award. We modify the portion of the judgment setting forth the amount to be distributed to Shopoff from the deposit at the title company, and we affirm the judgment as modified.
Appellees' motion to dismiss, which was carried with this appeal, is denied. See TEX. CIV. PRAC. & REM. CODE ANN. § 171.098(a)(3) (West 2011) (providing party may appeal a judgment or order confirming an arbitration award).
BACKGROUND
After a four-day arbitration hearing, a panel of arbitrators issued a final award on March 29, 2017. On April 4, 2017, the appellees filed a motion to confirm the award which was set for a hearing on April 12, 2017.
On April 6, 2017, Shopoff filed a first amended original petition and response to motion to confirm. On April 11, 2017, Shopoff filed a second amended petition and motion to vacate.
On April 12, 2017, a hearing was held on the appellees' motion to confirm. At the hearing, Shopoff's attorney conceded its motion to vacate was not set, but he argued section 171.088(c) of the Texas Arbitration Act (TAA) precluded the trial court from hearing the motion to confirm before hearing the motion to vacate. When the trial court ruled the hearing on the motion to confirm would proceed, Shopoff's attorney made a verbal motion for continuance, asking the trial court to postpone the hearing for a week and then hear both motions together. The trial court denied the continuance. At the conclusion of the hearing, the trial court granted the motion to confirm and signed a final judgment. Shopoff appeals.
STANDARD OF REVIEW
We review a trial court's decision to confirm an arbitration award under a de novo standard of review. Denbury Onshore, LLC v. Texcal Energy S. Tex., L.P., 513 S.W.3d 511, 515 (Tex. App.—Houston [14th Dist.] 2016, no pet.); SSP Holdings Ltd. P'ship v. Lopez, 432 S.W.3d 487, 492 (Tex. App.-San Antonio 2014, pet. denied). "In a de novo review, the trial court's decision is given no deference." Lopez, 432 S.W.3d at 492.
PENDING MOTION TO VACATE
In its first issue, Shopoff contends the trial court erred by granting the appellees' motion to confirm the arbitration award without considering its pending motion to vacate. Specifically, Shopoff asserts, "[i]f a motion to vacate an arbitration award is filed prior to confirmation of the award and within the 90 day limitations period," the trial court cannot "skip over the motion to vacate and proceed straight to confirming the award." Therefore, Shopoff contends "the trial court erred by holding a hearing on [the appellees'] motion to confirm ahead of Shopoff's motion to vacate, and by denying Shopoff's request for a continuance to hear the motions together."
The appellees respond the trial court did not err because Shopoff did not set a hearing on its motion to vacate. In addition, the appellees contend Shopoff waived any error by failing to file a proper motion for continuance.
A. Filing of Motion to Vacate
A party must file a motion to vacate "not later than the 90th day after the date of delivery of a copy of the [arbitration] award." See TEX. CIV. PRAC. & REM. CODE ANN. § 171.088(b) (West 2011). In its brief, Shopoff refers to this 90-day window and appears to argue a party should be not permitted to circumvent this time period by expeditiously filing and setting a motion to confirm. The courts, however, "have held that the [90-day period] represents a maximum, not an absolute period upon which the challenging party may always rely." Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 264 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). Stated differently, the 90-day time period does not require the party who prevails at arbitration to wait until the 90-day period has ended before filing a motion to confirm. See City of Baytown v. C.L. Winter, Inc., 886 S.W.2d 515, 520-21 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (rejecting argument that party was precluded from obtaining confirmation of award during the 90-day period other party had to file an application to vacate the award); see also Pate & Pate Enters., Inc. v. Southland Contracting, Inc., No. 13-01-837-CV, 2002 WL 34231219, at *2 (Tex. App.—Corpus Christi Nov. 14, 2002, no pet.) (mem. op.; not designated for publication) (holding TAA's provisions "do not require [a party] to wait ninety days to move for confirmation of the award"). Instead, the filing of the motion to confirm "'imposes on the other party an obligation to move to vacate if he intends to do so.'" Hamm, 178 S.W.3d at 264-65 (quoting Florasynth, Inc. v. Pickholz, 750 F.2d 171, 174 (2nd Cir. 1984)). As the Houston court has noted, "if a party moves to confirm the arbitration award, then the party opposing the award may not 'idly stand by, allow the award to be confirmed and judgment thereon entered, and then move to vacate the award just as though no judgment existed.'" Id. at 265 (quoting The Hartbridge, 57 F.2d 672, 673 (2nd Cir. 1932)).
B. Ruling on Motion to Vacate
A trial court may not consider a motion to vacate after it renders a judgment confirming an arbitration award. See GJR Mgmt. Holdings, L.P. v. Jack Raus, Ltd., 126 S.W.3d 257, 260 (Tex. App.—San Antonio 2003, pet. denied) (holding "it was too late to vacate the award" after the trial court already entered a judgment on the award); see also Human Biostar, Inc. v. Celltex Therapeutics Corp., 514 S.W.3d 844, 851 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (holding motion to vacate is waived if "'not raised or considered before or simultaneously with a motion to confirm'") (quoting Hamm, 178 S.W.3d at 269). Accordingly, to avoid waiving a motion to vacate, the motion to vacate "must be pending before the court for its consideration, or must already have been ruled on, at the time that the court considers the motion to confirm." Hamm, 178 S.W.3d at 263.
C. Analysis
In this case, although Shopoff filed a motion to vacate the day before the hearing on the appellees' motion to confirm, Shopoff did not set its motion for a hearing. See In re Amaro, No. 13-17-00185-CV, 2017 WL 2979903, at *5 (Tex. App.—Corpus Christi July 11, 2017, orig. proceeding [mand. pending]) (mem. op.) (noting "'movant has the burden to set a hearing on [a] motion or make a direct request to a trial judge for a hearing'") (quoting Enriquez v. Livingston, 400 S.W.3d 610, 619-20 (Tex. App.—Austin 2013, pet. denied)); Doss v. Robinson, No. 04-16-00560-CV, 2017 WL 2124488, at *3 (Tex. App.—San Antonio May 17, 2017, no pet.) (mem. op.) (noting local rules place burden on party to set motion for a hearing). Until a party requests a setting, a motion is not "pending before the court for its consideration." Hamm, 178 S.W.3d at 263. In addition, because Shopoff failed to file a written motion for continuance, the trial court did not abuse its discretion in denying the continuance Shopoff requested to enable it to set the motion to vacate so the motions could be considered simultaneously. See Hamm, 178 S.W.3d at 269-71 (holding trial court did not abuse its discretion in denying motion for continuance where motion was not verified or accompanied by an affidavit); see also Echendu v. Huerta, No. 05-15-01351-CV, 2017 WL 1908622, at *2 (Tex. App.—Dallas May 9, 2017, no pet.) (mem. op.) ("An oral motion for continuance does not satisfy the requirements of rule 251."); Bravenec v. Flores, No. 04-11-00444-CV, 2013 WL 1149418, at *2 (Tex. App.—San Antonio Mar. 20, 2013, no pet.) (mem. op.) (holding trial court did not abuse its discretion where party failed to file a written motion for continuance and trial court denied his oral motion); TEX. R. CIV. P. 251 (requiring motion for continuance to be supported by affidavit). Therefore, because Shopoff did not set its motion to vacate for a hearing or file a written motion for continuance to enable it to obtain such a setting so that the motion to confirm and the motion to vacate could be heard simultaneously, the trial court did not err in proceeding with the hearing on the motion to confirm.
Citing section 171.088(c) of the TAA, Shopoff further argues that a ruling on its motion to vacate was a condition precedent to the entry of an order confirming the arbitration award. Section 171.088(c) provides, "If the application to vacate is denied and a motion to modify or correct the award is not pending, the court shall confirm the award." TEX. CIV. PRAC. & REM. CODE ANN. § 171.088(c). Section 171.087, however, provides that the trial court shall confirm the award "[u]nless grounds are offered for vacating, modifying, or correcting [the] award." Id. at § 171.087. Therefore, "confirmation is the default result unless a challenge to the award has been or is being considered." Hamm, 178 S.W.3d at 262.
Shopoff's reliance on section 171.088(c) ignores its responsibility for setting its motion to vacate for a hearing. Because it failed to set its motion for a hearing, the motion was not "pending before the court for its consideration." Id. at 263. Absent a request for a setting on a motion to vacate, a trial court has no obligation to rule on the motion. See Doss, 2017 WL 2124488, at *4 (holding trial court does not fail to perform a ministerial duty to rule on a motion if the record does not establish the motion was set for a hearing); Kelly v. Hinson, 387 S.W.3d 906, 911 (Tex. App.—Fort Worth 2012, pet. denied) (holding trial court had ministerial duty to set a motion for a hearing when parties repeatedly requested a hearing and communicated with the court coordinator in an effort to set a hearing on their motion). Therefore, unless a party has set a motion to vacate for a hearing so that it is pending before the court for its consideration, a ruling on a motion to vacate is not a condition precedent to the confirmation of an arbitration award.
JUDGMENT'S FAILURE TO CONFORM TO THE ARBITRATION AWARD
The trial court's judgment states that the arbitration award, which is attached to the judgment, is confirmed as the judgment of the court. In its second issue, Shopoff contends the trial court erred in entering a judgment that does not conform to the arbitration award in two respects.
First, Shopoff argues the judgment includes additional defendants who were not included in the arbitration award. In its brief, Shopoff does not explain how it is harmed by the inclusion of these additional defendants. Since the amount Shopoff is entitled to receive under the award will be distributed to it from money on deposit with a title company, we are unable to discern the harm to Shopoff from the inclusion of the additional defendants. See TEX. R. APP. P. 44.1 (providing judgment may not be reversed on appeal unless the error results in harm).
Second, Shopoff argues it was entitled to receive $493,900.00 under the arbitration award; however, the judgment only requires $493,000.00 to be distributed to it. The harm by this error is apparent and also leaves $900 on deposit with the title company without any instructions for disbursement. "[W]e have the authority to modify incorrect judgments when the necessary information is available for us to do so." In re Marriage of Armstrong, No. 12-15-00300-CV, 2017 WL 3225053, at *3 (Tex. App.—Tyler July 31, 2017, no pet.) (mem. op.); see also Mullins v. Mullins, 202 S.W.3d 869, 878 (Tex. App.—Dallas 2006, pet. denied) (same); TEX. R. APP. P. 43.2(b). We therefore sustain Shopoff's second issue in part and modify the trial court's judgment to reflect the full amount Shopoff was entitled to receive under the arbitration award.
CONCLUSION
The portion of the trial court's judgment ordering $493,000.00 of the $2,500,000.00 on deposit with First American Title Company to be distributed to Plaintiff Shopoff Advisors, L.P. is modified to order $493,900.00 of the $2,500,000,00 on deposit with First American Title Company to be distributed to Plaintiff Shopoff Advisors, L.P. The trial court's judgment is affirmed as modified.
Patricia O. Alvarez, Justice