Ketan Thakkar D/B/A Parkway Food Mart v. Niranjan S. Patel and Parkway Retail Center, Inc. ( 2002 )

   11th Court of Appeals

Eastland, Texas

          Opinion

Ketan Thakkar d/b/a Parkway Food Mart et al

Appellants

Vs.                   No. 11-00-00220-CV B Appeal from Fort Bend County

Niranjan S. Patel and Parkway Retail Center, Inc.

Appellees

This is an appeal from a judgment that, based upon a stipulation of the parties, includes a calculation of profits by an arbitrator.  Appellants, Ketan Thakkar d/b/a Parkway Food Mart, Mukkesh Thakkar, Deepak Thakkar, and Bharat Thakkar, appeal the judgment in favor of appellees, Niranjan S. Patel and Parkway Retail Center, Inc.  We affirm.

Several issues regarding the parties= ownership and participation agreements in a retail center were submitted to the jury. Those specific jury findings are not in issue in this appeal.  Appellants= complaints are directed to the findings by the arbitrator.  The parties agreed in open court that they would be bound by the findings of the arbitrator as to the calculation of profits and the participation damages of the parties.

The stipulation made in open court and entered in the record did not state whether the arbitration was to be conducted under common law or statutory law.

The court in L. H. Lacy Co. v. City of Lubbock, 559 S.W.2d 348 (Tex.1977), stated that, whether the parties had in view a statutory or a common-law arbitration, has been held to be immaterial if the proceedings can be upheld under either system.  We will discuss both common-law arbitration and statutory arbitration.

Appellants challenge the arbitrator=s profit participation findings and argue that the arbitrator miscalculated certain findings.

A common-law arbitrator=s award may be set aside by showing that the arbitrator was guilty of fraud, misconduct, or such gross mistake as would imply bad faith or failure to exercise honest judgment.  City of San Antonio v. McKenzie Const. Co., 150 S.W.2d 989 (Tex.1941); and Bailey and Williams v. Westfall, 727 S.W.2d 86 (Tex.App. - Dallas 1987, writ ref=d n.r.e.).  It is well established that a mere mistake of fact or law is insufficient to set aside an arbitration award.  Jamison & Harris v. National Loan Investors, 939 S.W.2d 735 (Tex.App. - Houston [14th Dist.] 1997, writ den=d); J.J. Gregory Gourmet Services, Inc. v. Antone=s Import Company, 927 S.W.2d 31 (Tex.App. - Houston [1st Dist.]1995, no writ); Anzilotti v. Gene D. Liggin, Inc., 899 S.W.2d 264 (Tex.App. - Houston [14th Dist.] 1995, no writ).

We note that appellants did not comply with the procedural requirements when a party seeks to modify, correct, or vacate an arbitrator=s award. TEX. CIV. PRAC. & REM. CODE ANN. '' 171.054, 171.088, & 171.091 (Vernon Supp. 2002).  Furthermore, appellants have not shown that the arbitrator=s findings resulted in an Aevident miscalculation of numbers@ as required in Section 171.091(a)(1)(A) to modify or correct an award.  Riha v. Smulcer, 843 S.W.2d 289 (Tex.App. - Houston [14th Dist.] 1992, writ den=d).

Finally, without a record of the arbitration proceeding, we must presume that the evidence before the arbitrator was adequate to support the award.  Jamison & Harris v. National Loan Investors, supra. Appellants= points of error are overruled.

The judgment of the trial court is affirmed.

AUSTIN McCLOUD

SENIOR JUSTICE

April 4, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

McCall, J., and McCloud, S.J.^[1]

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^[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.