Mitchell Reitman and Melinda Reitman v. Roger L. Yandell ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00245-CV
MITCHELL REITMAN AND APPELLANTS
MELINDA REITMAN
V.
ROGER L. YANDELL APPELLEE
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FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 153-246953-10
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MEMORANDUM OPINION1
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In a single issue, Appellants Mitchell and Melinda Reitman assert that the
trial court erred by compelling them to arbitrate their claims against Appellee
Roger L. Yandell. Following the arbitration compelled by the trial court, the
arbitrator signed his “Reasoned Arbitration Award” on August 17, 2016.
1
See Tex. R. App. P. 47.4.
Subsequently, on November 10, 2016, Yandell filed an application to confirm the
arbitration award under the Texas Arbitration Act (TAA) and sought entry of a
final judgment. On May 18, 2017, the Reitmans filed a response to Yandell’s
motion to confirm the arbitration award. The Reitmans’ response alleged various
challenges to the arbitration award—including that Yandell was not a party to the
arbitration agreement and that, instead, only his business, RLY Investments, Inc.,
was a party to it. In addition, the prayer in the Reitmans’ response requested
that the trial court vacate the award. The trial court subsequently signed a final
judgment confirming the arbitration award. The Reitmans timely perfected this
appeal from the final judgment confirming the arbitration award.
On appeal, the Reitmans set forth the tedious path their claims against
RLY Investments, Inc. took in the trial court and in the first compelled arbitration
and the equally tedious path that their claims against Yandell individually took in
the trial court and in a second compelled arbitration. The Reitmans contend that
the trial court erred by compelling the second arbitration of their claims against
Yandell individually for a variety of reasons, including that their claims against
him were torts and that Yandell was not a party to the contract containing the
arbitration provision. The Reitmans also contend on appeal that the arbitrator’s
award of attorney’s fees to Yandell in the second arbitration was arbitrary and
capricious.2
2
As pointed out by Yandell, a complete record from the second compelled
arbitration is not before us.
2
Yandell contends on appeal that the trial court did not err by confirming the
arbitration award and, in fact, was required to confirm it because the Reitmans
did not timely file a motion to vacate the arbitration award within three months or
within ninety days of the date the August 17, 2016 second arbitration award was
filed or delivered as required under the Federal Arbitration Act (FAA) and the
TAA, respectively. Yandell argues that to the extent the Reitmans’ response to
his motion to confirm the arbitration award can be construed as a motion to
vacate, it was not timely filed and points out that if the Reitmans’ response is not
construed as a motion to vacate, then the trial court was required to confirm the
award because no motion to vacate it was on file.3
Both the FAA and the TAA require a party to file a motion or application to
vacate, modify, or correct the arbitrator’s award within a set time after the award
is filed or delivered: three months under the FAA and ninety days under the
TAA. See 9 U.S.C.A. § 12 (West 2009) (FAA provision providing that “[n]otice of
a motion to vacate, modify, or correct an award must be served upon the adverse
party or his attorney within three months after the award is filed or delivered”);
Tex. Civ. Prac. & Rem. Code Ann. §§ 171.088, 171.091 (TAA provisions setting
forth, respectively, grounds seeking and time limit for making application to
vacate award and application to modify or correct award). Under either the FAA
3
See Tex. Civ. Prac. & Rem. Code Ann. §§ 171.087, 171.088, 171.091
(West 2011) (requiring trial court to confirm arbitration award unless statutory
grounds for vacating, modifying, or correcting award are offered by application
filed within the ninety-day rule).
3
or the TAA, a party who fails to timely seek to vacate, modify, or correct an
arbitrator’s award forfeits his right to seek judicial review of the award.4 And
under either the FAA or the TAA, a trial court must confirm an arbitration award
unless statutory grounds are offered (via an application filed within the three-
month or the ninety-day rule, respectively) for vacating, modifying, or correcting
the award.5
4
See, e.g., Craig v. Sw. Sec., Inc., No. 05-16-01378-CV, 2017 WL
6503213, at *3 (Tex. App.—Dallas Dec. 18, 2017, no pet.) (mem. op.) (holding
that once FAA’s three-month period for filing motion to vacate has expired, a
party may not attempt to vacate an arbitration award for any reason) (citing
Turner v. Tex//Tow Marine Towing & Salvage, LLC, 502 S.W.3d 368, 372–73
(Tex. App.—Houston [14th Dist.] 2016, no pet.)); Slay v. Nationstar Mortg.,
L.L.C., No. 02-09-00052-CV, 2010 WL 670095, at *3 (Tex. App.—Fort Worth
Feb. 25, 2010, pet. denied) (mem. op.) (holding that “Slay did not seek to vacate,
modify, or correct the arbitrator’s award within three months or ninety days of the
award and forfeited his right to seek judicial review of the arbitrator’s award”);
Mauldin v. MBNA Am. Bank, N.A., No. 02-07-00208-CV, 2008 WL 4779614, at *3
(Tex. App.—Fort Worth Oct. 30, 2008, no pet.) (mem. op.) (holding that party
waived right to judicial review of arbitration award under FAA when he “filed his
motion to vacate the arbitration award—in which he raised the same arguments
he now raises on appeal—well beyond . . . [the] three[-]month deadline”); La.
Nat. Gas Pipeline, Inc. v. Bludworth Bond Shipyard, Inc., 875 S.W.2d 458, 462
(Tex. App.—Houston [1st Dist.] 1994, writ denied) (holding TAA’s ninety-day time
period for filing motion to vacate arbitration award is “a limitations period after
which a party cannot ask a court to vacate an arbitration award”).
5
See, e.g., Schlobohm v. Pepperidge Farm, Inc., 806 F.2d 578, 580 n.2
(5th Cir. 1986) (explaining that under FAA, “[a] court must grant an order
confirming the award unless it finds that the award should be vacated, modified,
or corrected” per 9 U.S.C. § 10 or § 11); Kreit v. Brewer & Pritchard, P.C., 530
S.W.3d 231, 237 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (explaining
that under TAA the trial court is required to confirm an arbitration award unless
grounds are timely offered for vacating, modifying, or correcting the award per
Texas Civil Practice and Remedies sections 171.087, 171.088, 171.091); In re
Chevron U.S.A., Inc., 419 S.W.3d 318, 326 (Tex. App.—El Paso 2010, orig.
proceeding) (recognizing that in absence of service of notice of motion to vacate
4
The Reitmans did not seek to vacate, modify, or correct the arbitration
award signed on August 17, 2016, until their May 18, 2017 response to Yandell’s
motion to confirm the award. Under either the FAA or the TAA, to the extent the
Reitmans’ response to Yandell’s motion to confirm the arbitration award may be
construed as an application for vacatur, modification, or correction of the
arbitration award, it was not timely, and the Reitmans have therefore forfeited
their right to seek judicial review of the award.6
We overrule the Reitmans’ sole issue and affirm the trial court’s judgment
confirming the arbitration award.
PER CURIAM
PANEL: WALKER, MEIER, and KERR, JJ.
DELIVERED: March 15, 2018
before FAA’s three-month deadline, trial court must grant order confirming
award).
6
See Tex. Civ. Prac. & Rem. Code Ann. §§ 171.087, 171.088, 171.091.
5