05-08-00739-CV
Ancor Holdings, LLC v. Peterson, Goldman & Villani, Inc.
(Tex. App. -Dallas, Aug. 25, 2009)
File: 080739F - From documents transmitted: 08/25/2009
AFFIRM as MODIFIED and Opinion Filed August 25, 2009
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-00739-CV
............................
ANCOR HOLDINGS, LLC, Appellant/Cross-Appellee
V.
PETERSON, GOLDMAN & VILLANI, INC., Appellee/Cross-Appellant
.............................................................
On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 04-00836-H
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OPINION
Before Justices Moseley, O'Neill, and Murphy
Opinion By Justice Murphy
Ancor Holdings, LLC appeals the trial court's judgment confirming an arbitration award under the Federal
Arbitration Act (FAA) in favor of appellee, Peterson, Goldman & Villani, Inc. (PGV). In five issues, Ancor argues
the arbitration award should be vacated because the arbitrator manifestly disregarded the law, exceeded her
powers, and reached an award full of gross error, showing a failure to exercise honest judgment. PGV also filed
a cross-appeal asserting the trial court erred when it (1) modified the arbitration award to exclude PGV's award
for its share of the arbitration costs and (2) denied PGV's request to modify the name of appellant. We
conclude the trial court erred by excluding PGV's award for one-half the arbitration costs and therefore modify
the judgment of the trial court to reinstate PGV's award. We affirm the trial court's judgment as modified.
BACKGROUND
This dispute arises from PGV's action to enforce a guaranty agreement against Ancor. PGV was the successor-
in-interest to a Continuing and Unconditional Guaranty (Guaranty) by Ancor and in favor of Bank of America, N.
A. (Bank). The Guaranty related to $2,200,000 in promissory notes payable to the Bank by OpenPoint
Systems, Inc., the successor-by-merger to three entities in which Ancor was the controlling shareholder. PGV
purchased the promissory notes and Guaranty from the Bank in March 2003.
The Guaranty provided that it was “continuing and unlimited as to the amount,” except as set forth in this
limitation:
As of the date of any default under this Guaranty or under any Loan Documents . . . between [OpenPoint] and
the [Bank], to the extent the Bank resorts to [Ancor] for payment, this Guaranty is limited to an amount equal to
the difference between (a) $1,643,000.00 and (b) the sum of (i) [OpenPoint's] reported total of accounts
receivable as reported by [OpenPoint] to the Bank as of the date of such default (ii) the total value of
[OpenPoint's] inventory as reported by [OpenPoint] to the Bank as of the date of such default and (iii) the total
value of [OpenPoint's] net fixed assets as reported by [OpenPoint] to the Bank as of the date of such default;
provided that Bank has a perfected, first priority lien, that is not subject to any claims of preference in any
bankruptcy or insolvency proceeding, in such accounts receivable, inventory and fixed assets as of the date of
such default.
(Emphasis in original). According to Ancor, the essential purpose of the Guaranty was to protect the Bank
against further deterioration in the value of the Bank's collateral position. At the time the parties signed the
Guaranty, the Bank's collateral had a reported value of $1,643,000. Therefore, Ancor believed it would be
liable only for the difference between $1,643,000 and the reported value of the collateral at the time of a
default.
The parties signed the Guaranty on March 7, 2000. One month later, the Bank recorded new UCC-1 financing
statements on certain OpenPoint collateral to perfect its first priority lien status. See Footnote 1 At the time
the parties negotiated the Guaranty, Ancor's representatives assumed the Bank held a perfected security
interest in the OpenPoint collateral. On May 16, 2000, two months after Ancor and the Bank executed the
Guaranty and just over a month after the Bank filed new financing statements, OpenPoint filed for bankruptcy
protection under Chapter 7 of the United States Bankruptcy Code, an event of default under the Guaranty.
During the bankruptcy proceedings, the bankruptcy trustee questioned the Bank's first priority lien status on
the OpenPoint collateral. Two years later, in May 2002, the bankruptcy trustee filed an adversary proceeding
against the Bank, alleging that the financing statements filed in the month preceding the bankruptcy filing
should be avoided as a preference. The Bank alleged various defenses in its answer to the preference claim,
and the bankruptcy trustee settled with PGV in April 2003 for $120,000. The bankruptcy court approved the
settlement and ordered that PGV's remaining claim in excess of the settlement amount be subordinated to the
claims of the general unsecured creditors for any future distributions from the bankruptcy estate. PGV received
no further distributions from the bankruptcy estate.
On February 2, 2004, PGV filed suit seeking to enforce the Guaranty against Ancor. PGV asserted that
because the bankruptcy trustee filed a preference claim, Ancor could not invoke the limitations formula
provided in the Guaranty and was therefore liable for the full amount owed under the promissory notes. The
trial court thereafter referred the case to arbitration pursuant to the parties' joint motion under the Guaranty's
arbitration clause. During the course of the arbitration proceedings, the arbitrator issued six interim orders
and findings. The first Interim Order and Findings addressed the extent of Ancor's liability under the Guaranty.
Applying the rules of contract construction, the arbitrator determined the pertinent language of the Guaranty
was unambiguous, as urged by both parties. The arbitrator concluded the filing of a preference claim in the
OpenPoint bankruptcy proceedings was enough to negate the limitation provision in the Guaranty, rendering
Ancor liable for the full amount due under the promissory notes.
After Ancor asked for reconsideration of the first order, the arbitrator issued a Second Interim Order and
Findings. In her second order, the arbitrator acknowledged Ancor's arguments regarding the language and
meaning of the Guaranty, specifically noting that “[c]ontrary to its initial stipulation in these proceedings that the
pertinent Guaranty language is unambiguous, Ancor now contends that the language is ambiguous . . . .” After
considering Ancor's claim of ambiguity, the arbitrator determined that “[w]hen the language of the Guaranty is
read as a whole in light of the circumstances present when the Guaranty was entered, and in accordance with
governing contract interpretation rules, one reasonable meaning emerges.” Based on the phrase “subject to
any claims of preference . . . as of the date of such default,” the arbitrator concluded the Guaranty reflected
the parties' intention that the limitation language be vitiated such that “the Bank recover its right to a full
Guaranty, where its lien is subject to any claim of preference . . . .” (Emphasis in original). The arbitrator upheld
her first decision.
Following the second order, PGV filed an amended petition and moved for summary judgment on the amount
owed by Ancor. In response, Ancor filed an amended answer and a counterclaim for reformation of the
Guaranty. On its reformation claim, Ancor asserted mutual mistake. It requested reformation to reflect the
Bank's and Ancor's mutual intent for a “limited” guaranty. Acknowledging that Ancor's newly asserted
affirmative defenses and counterclaim for reformation altered the nature of the proceedings and required
additional discovery, the arbitrator allowed Ancor to proceed on the new defenses and counterclaim. After
extensive briefing, the arbitrator concluded Ancor's reformation claim was not time-barred. See Footnote 2
Following an evidentiary hearing on the reformation issue, the arbitrator issued the Sixth Interim Order and
Findings partially granting Ancor's request. She concluded Ancor's liability was capped under the formula
paragraph at the maximum of $1,643,000. The arbitrator reformed the Guaranty “consistent with the intent of
the parties,” using language proposed by Ancor, as follows:
This Guaranty is continuing and unlimited as to the amount, except as set forth below . . . .
As of the date of any default under this Guaranty or any Loan Documents . . . between [OpenPoint] and the
Bank, to the extent the Bank resorts to [Ancor] for payment, this Guaranty is limited to an amount equal to the
difference between (a) $1,643,000.00 and (b) the sum of [i] [OpenPoint's] reported total of accounts receivable
as reported by [OpenPoint] to the Bank as of the date of such default (ii) the total value of [OpenPoint's]
inventory as reported by [OpenPoint] to the Bank as of the date of such default and (iii) the value of
[OpenPoint's] net fixed assets as reported by [OpenPoint] to the Bank as of the date of such default; provided
that the guaranty amount of $1,643,000 will only be reduced by the value of those items of collateral (accounts
receivable, inventory and/or net fixed assets) in which the Bank holds a perfected first priority lien as of the
date of any default, and which has not been made the subject of a claim of preference in any bankruptcy or
insolvency proceeding.
(Emphasis in original). The arbitrator found by clear and convincing evidence that “a slight change” was
warranted to conform the agreement to the actual terms reached among the representatives of Ancor and the
Bank. She upheld the reformation in her “Clarification of Sixth Interim Order and Findings.”
Thereafter, the arbitrator entered the Final Award, providing a detailed analysis of her findings and rationale.
Importantly, she discussed the “perfected, first priority lien” language and concluded from the evidence that the
first priority lien requirement was an “agreed term.” She further emphasized that all parties were sophisticated
businessmen and understood the value of the collateral was meaningless unless the Bank had the ability to
collect. Applying the $1,643,000 damage cap formula, the arbitrator calculated and awarded PGV $829,764 in
principal under the Guaranty plus interest, costs, and attorneys' fees. Without specifying an amount, the
arbitrator also awarded PGV its share of the arbitration costs.
The parties' cross-motions to confirm and vacate the arbitration award followed. After hearing arguments, the
trial court signed a judgment confirming the award in favor of PGV, but excluding PGV's arbitration costs
because PGV presented no evidence of its costs. Thereafter, the trial court modified the judgment to fix a
typographical error as to the commencement date for prejudgment interest. The trial court also denied PGV's
requests to reinstate the arbitrator's award of costs and to modify the name of appellant from Ancor Holdings,
LLC to Ancor Holdings, LP. Both parties appealed.
ANALYSIS
Ancor raises five issues on appeal asserting the trial court erred by not vacating the arbitration award. Ancor's
issues essentially attack the award in three respects: (1) the arbitrator manifestly disregarded the law (issues
one and five); (2) the arbitrator exceeded her powers by allowing PGV to arbitrate its issues that were barred
and by rendering a decision that violates the essence of the Guaranty (issues two and three); and (3) the
arbitration award is tainted with gross mistake, implying a failure to exercise honest judgment (issue four). In its
cross-appeal, PGV contends the trial court erred when it excluded the arbitrator's award of costs and denied
PGV's request to modify Ancor's name. We begin with Ancor's issues.
Standard of Review
The parties agree the FAA applies to this case. See 9 U.S.C. §§ 1-16 (2009). We review de novo a trial court's
confirmation of an arbitration award under the FAA based on the entire record. Myer v. Americo Life, Inc., 232
S.W.3d 401, 407 (Tex. App.-Dallas 2007, no pet.); Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P.,
105 S.W.3d 244, 250 (Tex. App.-Houston [14th Dist.] 2003, pet. denied). An arbitration award is treated the
same as the judgment of a court of last resort. Bailey & Williams v. Westfall, 727 S.W.2d 86, 90 (Tex. App.-
Dallas 1987, writ ref'd n.r.e.); see also Quinn v. Nafta Traders, Inc., 257 S.W.3d 795, 798 (Tex. App.-Dallas
2008, pet. granted). All reasonable presumptions are indulged to uphold the arbitrator's decision, and none is
indulged against it. Bailey, 727 S.W.2d at 90; see also CVN Group, Inc. v. Delgado, 95 S.W.3d 234, 238 (Tex.
2002).
An arbitration award is presumed valid and entitled to great deference. Myer, 232 S.W.3d at 407-08;
Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 429 (Tex. App.-Dallas 2004, pet. denied). When reviewing an
arbitration award, we may not substitute our judgment merely because we would have reached a different
decision. Bailey, 727 S.W.2d at 90; see also CVN Group, Inc., 95 S.W.3d at 238. Judicial review of an
arbitration award adds expense and delay and thereby diminishes the benefits of arbitration as an efficient,
economical system for resolving disputes. CVN Group, Inc., 95 S.W.3d at 238; Crossmark, 124 S.W.3d at 429.
Accordingly, our review of the arbitration award is “extraordinarily narrow.” Myer, 232 S.W.3d at 408; see also
Statewide Remodeling, Inc. v. Williams, 244 S.W.3d 564, 568 (Tex. App.-Dallas 2008, no pet.); Tanox,105 S.W.
3d at 250. Importantly, our review is so limited that we may not vacate an award even if it is based upon a
mistake in law or fact. Crossmark, 124 S.W.3d at 429 (citing Anzilotti v. Gene D. Liggin, Inc., 899 S.W.2d 264,
266 (Tex. App.-Houston [14th Dist.] 1995, no writ)). Because of the deference given to arbitration awards,
judicial scrutiny focuses on the integrity of the process, not the propriety of the result. TUCO Inc. v. Burlington
N. R.R. Co., 912 S.W.2d 311, 315 (Tex. App.-Amarillo 1995), modified on other grounds, 960 S.W.2d 629 (Tex.
1997).
Vacatur under the FAA
Under the terms of the FAA, an arbitration award must be confirmed unless it is vacated, modified, or corrected
under one of the limited grounds set forth in sections 10 and 11 of the Act. See 9 U.S.C. §§ 9-11. Section 10(a)
permits a court to vacate an arbitration award -
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause
shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior
by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and
definite award upon the subject matter submitted was not made.
Id. § 10(a). Although the courts have recognized certain common law exceptions for vacating an arbitration
award, See Footnote 3 the United States Supreme Court recently held that the grounds listed in the statute
are the exclusive grounds for vacating an arbitration award under the FAA. Hall St. Assocs., L.L.C. v. Mattel,
Inc., 128 S. Ct. 1396, 1403 (2008) (holding that statutory grounds for vacating or for modifying or correcting
arbitration award are exclusive grounds for expedited vacatur and modification of award pursuant to FAA); see
also Citigroup Global Mkts., Inc. v. Bacon, 562 F.3d 349, 350 (5th Cir. 2009) (concluding Hall Street restricts
grounds for vacatur to those set forth in section 10).
Of the issues Ancor presents for review, only two - that the arbitrator exceeded her powers by ignoring the law
and by rendering an award that violates the essence of the Guaranty - arguably fall within the statutory
grounds for vacatur under the FAA. See 9 U.S.C. § 10(a)(4). Ancor's remaining grounds - that the arbitrator
manifestly disregarded the law and committed gross mistake implying a failure to exercise honest judgment -
are common law grounds for vacating an arbitration award. See Crossmark, 124 S.W.3d at 430 n.6; Tanox, 105
S.W.3d at 252. The parties dispute whether the Supreme Court's decision in Hall Street forecloses our review
based on Ancor's non- statutory grounds. We conclude it does.
In Hall Street, the parties to the underlying lease dispute agreed to submit an indemnification claim to
arbitration. Hall St., 128 S. Ct. at 1400. The arbitration agreement, which was negotiated by the parties and
approved by the district court, required the court to “vacate, modify or correct any award: (i) where the
arbitrator's findings of facts are not supported by substantial evidence, or (ii) where the arbitrator's conclusions
of law are erroneous.” Id. at 1400-01. These contractually agreed grounds deviated from those prescribed in
the FAA, and the Supreme Court granted review to determine “whether the grounds for vacatur and
modification provided by §§ 10 and 11 of the FAA are exclusive.” Id. at 1401.
Reviewing the purpose and text of the FAA, the Supreme Court held that sections 10 and 11 “provide the
FAA's exclusive grounds for expedited vacatur and modification.” Id. at 1403. In so holding, the Supreme Court
expressly rejected the argument that its use of the phrase “manifest disregard of the law” in Wilko v. Swan, 346
U.S. 427 (1953), expanded the grounds for vacatur beyond those listed in section 10. Hall St., 128 S. Ct. at
1403. The Supreme Court instructed that the text of the FAA “compels a reading of the §§ 10 and 11
categories as exclusive” because even assuming these sections could be supplemented, “it would stretch basic
interpretive principles to expand the stated grounds to the point of evidentiary and legal review generally.” Id. at
1404. The Supreme Court further explained:
[I]t makes more sense to see the three provisions, §§ 9-11, as substantiating a national policy favoring
arbitration with just the limited review needed to maintain arbitration's essential virtue of resolving disputes
straightaway. Any other reading opens the door to the full-bore legal and evidentiary appeals that can “rende[r]
informal arbitration merely a prelude to a more cumbersome and time-consuming judicial review process,” and
bring arbitration theory to grief in post-arbitration process.
Id. at 1405 (quoting Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 998 (9th Cir. 2003))
(internal citations omitted). The Supreme Court also noted that expanding sections 10 and 11 is inconsistent
with the language of section 9, which directs a court to grant an order confirming an arbitration award “unless
the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.” Id. (quoting 9 U.S.
C. § 9). The Supreme Court emphasized that this language “carries no hint of flexibility.” Id.
Following Hall Street, the Fifth Circuit, in Citigroup Global Markets, Inc. v. Bacon, overruled its precedent
holding that non-statutory grounds may support vacatur of an arbitration award under the FAA. 562 F.3d at
358. Ancor urges us to disregard Citigroup and argues the Supreme Court “has not expressly ruled that
'manifest disregard' is no longer a valid ground for vacating an arbitrator's award.” We disagree. We find the
analysis and holding in Citigroup persuasive and conclude the Supreme Court made clear that sections 10 and
11 are the exclusive grounds for vacating and modifying an arbitration award under the FAA. See Hall St., 128
S. Ct. at 1403. Thus, our review of an arbitration award under the FAA is limited to the statutory grounds. See
Footnote 4
We note that, in Hall Street, the Supreme Court suggested the possibility that a “more searching review based
on authority outside the statute” could serve as bases for vacating or modifying arbitration awards. Hall St., 128
S. Ct. at 1406. See Footnote 5 This case, however, does not open the door to that possibility. Here, the
parties pursued arbitration according to the terms of the Guaranty, which expressly invoked the FAA. The only
arguments made in the trial court and on appeal address the FAA. Accordingly, we do not consider the viability
of non-statutory grounds here and express no opinion that non-statutory grounds for vacating or modifying an
arbitration award could be considered in other contexts.
Because manifest disregard of the law and gross mistake are not grounds for vacating an arbitration award
under the FAA, Ancor has not demonstrated trial court error as to those grounds. We overrule Ancor's first,
fourth, and fifth issues.
Section 10(a)(4)
Ancor's second and third issues fall within section 10(a)(4) of the FAA, which states that an arbitration award
may be vacated “where the arbitrators exceeded their powers.” 9 U.S.C. § 10(a)(4). Ancor's argument for
vacatur under section 10(a)(4) has two parts. First, Ancor complains the arbitrator exceeded her powers by
allowing PGV to arbitrate issues that were precluded by res judicata or collateral estoppel. Second, Ancor
contends the arbitrator exceeded her powers by reaching a decision that does not draw its essence from the
intended purpose of the Guaranty.
Arbitrator Authority
“An arbitrator's authority is limited to disposition of matters expressly covered by the agreement or implied by
necessity.” Quinn, 257 S.W.3d at 799. Arbitrators, therefore, exceed their powers when they decide matters not
properly before them. Id.; see also Gulf Oil Corp. v. Guidry, 160 Tex. 139, 327 S.W.2d 406, 408 (1959). For
example, an arbitrator exceeds her powers by allocating an award of costs between the parties when the
arbitration agreement specifically requires the arbitrator to designate a non-prevailing party to bear the costs of
both sides. See Townes Telecomms., Inc. v. Travis, Wolff & Co., L.L.P., No. 05-08-00079-CV, 2009 WL
1844330, at *3 (Tex. App.-Dallas June 29, 2009, pet. filed).
Our inquiry under section 10(a)(4) is whether the arbitrator had the authority, based on the arbitration clause
and the parties' submissions, to reach a certain issue, not whether the arbitrator correctly decided the issue.
Executone Info. Sys., Inc. v. Davis, 26 F.3d 1314, 1323 (5th Cir. 1994); see also DiRussa v. Dean Witter
Reynolds Inc., 121 F.3d 818, 824 (2d Cir. 1997). The award must be derived in some way from the wording and
purpose of the agreement, and we look to the result reached to determine whether the award is rationally
inferable from the contract. Anderman/Smith Operating Co. v. Tenn. Gas Pipeline Co., 918 F.2d 1215, 1219 n.
3 (5th Cir. 1990). We may not vacate an arbitration award for errors in interpretation or application of the law or
facts. Crossmark, 124 S.W.3d at 429.
Although Ancor's first argument is couched in terms of whether the arbitrator exceeded her powers, Ancor's
argument is actually a complaint that the arbitrator committed an error of law by rejecting Ancor's assertion that
PGV's claims were barred by res judicata or collateral estoppel. A complaint that the arbitrator decided the
issue incorrectly or made mistakes of law, however, is not a complaint that the arbitrator exceeded her powers.
See Pheng Invs., Inc. v. Rodriguez, 196 S.W.3d 322, 329 (Tex. App.-Fort Worth 2006, no pet.) (op. on reh'g).
Moreover, after examining the Guaranty, the parties' submissions, the arbitrator's interim orders, and the final
award, there is no doubt the arbitrator responded to the issues submitted by the parties and that the arbitration
award falls within the scope of the Guaranty. Paragraph 17 of the Guaranty requires “ANY CONTROVERSY OR
CLAIM” arising out of the Guaranty to be determined by binding arbitration. Because Ancor has not established
that the arbitrator decided a matter not properly before her, we cannot conclude the arbitrator exceeded her
powers under section 10(a)(4) of the FAA. See 9 U.S.C. § 10(a)(4); see also Quinn, 257 S.W.3d at 799. We
overrule Ancor's second issue.
Essence of the Contract
The other strand of Ancor's argument under section 10(a)(4) is that the arbitration award does not “draw its
essence” from the intended purpose of the Guaranty. Ancor contends the arbitrator exceeded her powers by
rendering a decision that violates the Guaranty's purpose.
An arbitrator's award is “legitimate only so long as it draws its essence” from the underlying contract. United
Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960). The “essence” test was developed
as part of section 10(a)(4), allowing vacatur where the arbitrator exceeds her contractual authority. See id.;
Executone, 26 F.3d at 1324-25; Delta Queen Steamboat Co. v. Dist. 2 Marine Eng'rs Beneficial Ass'n, 889 F.2d
599, 602, 604 (5th Cir. 1989) (vacating the arbitrator's award because the arbitrator exceeded the express
provisions of his contractual mandate).
To draw its essence from the Guaranty, the arbitrator's award “'must have a basis that is at least rationally
inferable, if not obviously drawn, from the letter or purpose of the [Guaranty].'” Executone, 26 F.3d at 1325
(quoting Bhd. of R.R. Trainmen v. Cent. of Ga. Ry. Co., 415 F.2d 403, 412 (5th Cir. 1969)). “'[T]he award must,
in some logical way, be derived from the wording or purpose of the contract.'” Id. The arbitrator may not ignore
the plain language of the Guaranty in her interpretation. See United Paperworkers Int'l Union, AFL-CIO v,
Misco, Inc., 484 U.S. 29, 37 (1987). Because the parties also authorize the arbitrator to give meaning to the
language of the agreement, we should not reject an award on the ground that an arbitrator misread the
contract. Id. at 37-38. Thus, “improvident, even silly” interpretations by arbitrators usually survive judicial
challenges. Id. at 39; accord Perry Homes v. Cull, 258 S.W.3d 580, 607 (Tex. 2008) (“If arbitrators simply
misinterpret a contractual clause . . . that type of error is not one which will justify setting aside an award.”).
Our inquiry here is not one of contract interpretation. Rather, we look to whether the arbitrator's award “was so
unfounded in reason and fact, so unconnected with the wording and purpose of the [Guaranty] as to 'manifest
an infidelity to the obligation of the arbitrator'” such that the arbitrator failed to interpret the Guaranty at all.
Bhd. of R.R. Trainmen, 415 F.2d at 415 (quoting Enter. Wheel, 363 U.S. at 597); see also Misco, Inc., 484 U.S.
at 38 (“[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the
scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his
decision.”); Wise v. Wachovia Secs., LLC, 450 F.3d 265, 269 (7th Cir. 2006); Perry Homes, 258 S.W.3d at 607.
Even if we disagree with the arbitrator's decision here, we must uphold confirmation of the award if the
arbitrator's decision is rationally inferable from the Guaranty. Misco, Inc., 484 U.S. at 38; Anderman/Smith, 918
F.2d at 1219 n.3.
Ancor's position is that the arbitrator's resulting decision, which was based on her interpretation and eventual
reformation of the Guaranty, “was never the parties' deal.” Ancor argues that the only deal it struck with the
Bank was to protect the Bank against further deterioration in the value of the Bank's collateral position. Ancor
maintains that the intent behind the agreement was for Ancor to assume “limited” liability, as detailed in the
formulaic limitation found in the Guaranty. Ancor complains that the Guaranty's intent was not, as the arbitrator
found, for Ancor to be exposed to full liability in the event the Bank held an unperfected lien on its collateral.
It is clear from the arbitrator's interim orders and final award that she went through the process of interpreting
the Guaranty and that she considered the wealth of evidence presented to her. Our question now is to
determine whether the arbitrator's liability finding and ultimate award of damages is rationally inferable from the
Guaranty. We conclude it is.
In the first and second interim orders, the arbitrator assessed the limitation paragraph in the Guaranty. She
concluded that this paragraph had one reasonable meaning:
First, the Bank would have a continuing and unlimited Guaranty from Ancor for all amounts due under the loan
agreement between the Bank and [OpenPoint]. Second, in the event of any default, Ancor's liability would be
limited according to the formula described in the Guaranty; however, Ancor's liability would only be limited if the
Bank had a 'perfected first priority lien, that [was] not subject to any claims of preference in any bankruptcy or
insolvency proceeding . . . as of the date of such default.'
(Emphasis in original). Applying that limitation, she concluded the language at issue reflects the intention that
“the Bank recover its right to a full Guaranty, where its lien is subject to any claim of preference . . . .”
(Emphasis in original). Thus, the arbitrator opined that under the plain meaning of the Guaranty, “the limiting
language was to be vitiated under any circumstance where the Bank was subject to a claim of preference as of
the date of default, whether that claim had already been filed in court, or whether the facts which give rise to
the claim merely exist, but have not yet been reduced to writing.” The arbitrator rejected Ancor's argument -
that the Guaranty's limitation paragraph cannot be negated just because a preference claim was filed - stating
that Ancor's argument and interpretation of the Guaranty would effectively reform the agreement. At that time,
no party had sought reformation.
The arbitrator reconsidered the interpretation of the Guaranty in the sixth interim order and the later
clarification and reformed the Guaranty to provide a cap on Ancor's liability. Based on the evidence and
argument presented on the issue of reformation, the arbitrator found that the evidence tended to show two
things: (1) Ancor was only willing to ensure no further deterioration of the Bank's collateral position as it existed
at the time the Guaranty was signed, meaning the Bank and Ancor intended that Ancor's obligations under the
Guaranty would be capped at $1,643,000, and that cap would be reduced by the value of accounts receivable,
inventory, and net fixed assets as reported by OpenPoint to the Bank as of the date of any default; and (2) the
Bank and Ancor agreed that the Bank was to have a perfected first priority lien in any collateral included in any
calculation to reduce the $1,643,000 cap. “Thus, reported collateral values may be deducted, except where the
Trustee filed a claim of preference against said collateral.” Significant to this decision was the fact that Ancor's
representative testified they agreed the Bank should be able to collect on the collateral in the event of any
default.
The arbitrator also considered the inclusion of the “perfected, first priority lien status” in the reformed
Guaranty. She concluded the addition of this phrase was warranted and reasoned that “[w]ithout a perfected
first priority lien on collateral, the Bank would not have the legal right to seize and sell the collateral in the event
of a bankruptcy.” Further, despite Ancor's contention that it was only willing to “insure the bank no further
deterioration in [the Bank's] collateral position,” the arbitrator looked to what “collateral position” meant in terms
of the Guaranty and stated that “[c]ollateral position . . . includes not only the valuation of the collateral, but
also the priority lien status to be able to collect on the collateral.” Because the Bank should be able to collect
on the collateral, the arbitrator concluded that the “perfected, first priority lien” provision was an “enforceable
term within the reformed Guaranty.” Looking to the evidence related to the reported values of OpenPoint's
accounts receivable, inventory, and net fixed assets, the arbitrator applied the limitation formula in the reformed
Guaranty and, after deducting the collateral that was challenged by the trustee, the arbitrator awarded PGV
$829,764 under the Guaranty.
By including an arbitration clause in the Guaranty, the parties agreed to submit any disputes arising out of the
Guaranty to an arbitrator rather than a judge. Misco, Inc., 484 U.S. at 37-38. They also agreed to accept
“whatever reasonable uncertainties” might arise from the process. Babcock & Wilcox Co. v. PMAC, Ltd., 863 S.
W.2d 225, 235 (Tex. App.-Houston [14th Dist.] 1993, writ denied). Thus, it is the arbitrator's “view of the facts
and of the meaning of the contract that they have agreed to accept.” Misco, Inc., 484 U.S. at 37-38. Here, the
arbitrator determined that under the reformed Guaranty, Ancor is liable to PGV for an amount equal to the
difference between the $1,643,000 cap and the reported value of the collateral at the time of the default in
which the Bank held a perfected first priority lien as of the date of the default and which has not been
challenged by the trustee.
We conclude the arbitrator could rationally determine that the presence of the “perfected, first lien priority”
language meant that Ancor could be liable for an amount up to the agreed cap where the lien is subject to any
claim of preference in a bankruptcy or insolvency proceeding as of the date of default. It appears to this Court
that the arbitrator properly performed her obligation to interpret and reform the Guaranty. The mere fact that
the arbitrator did not adopt the interpretation of the Guaranty urged by Ancor and rejected certain proposals in
reforming the Guaranty does not equate to overstepping or exceeding her authority. Even if the arbitrator
made a mistake in the application of the law, as urged by Ancor, such a mistake is not a ground for vacating an
arbitration award. We therefore conclude the arbitrator's decision and award of damages are rationally
inferable from the Guaranty. We overrule Ancor's third issue.
PGV's Cross-Appeal
Arbitration Costs
PGV asserts two issues in its cross-appeal. In its first issue, PGV complains the trial court erred when it omitted
PGV's share of the arbitration costs as awarded. The arbitrator's award provides that “[u]nder the terms of the
Guaranty, Ancor is liable to pay PGV's share of the arbitration costs.” The arbitrator did not award a specific
amount of costs, but she undeniably based her decision on paragraph 14 of the Guaranty. Without a request
to do so by either party, the trial court modified PGV's award, stating that “[a]lthough the Arbitrator's Final
Award awarded PGV its share of the total costs of the arbitration proceeding, PGV presented no evidence of
these costs, and this relief is therefore denied.” The trial court also denied PGV's subsequent motion, seeking
reinstatement of the award.
PGV argues the trial court's modification of the award was improper because it did not confirm the award as
written. We agree. The Guaranty authorizes the arbitrator to determine “ANY CONTROVERSY OR CLAIM” and
provides that the arbitration shall be “BINDING.” The record shows that the arbitrator considered the issue of
arbitration costs as evidenced by the final award and that she applied the specific Guaranty provision in
awarding those costs. The record further shows that neither party filed a motion to modify the arbitration award
to exclude PGV's award for arbitration costs from the final judgment as required by section 11 of the FAA. See
9 U.S.C. § 11 (allowing the trial court to modify or correct an arbitration award on limited grounds “upon the
application of any party”). Ancor's post-arbitration motion only asked the trial court to vacate the entire award
under section 10(a) of the FAA and on other common law grounds.
When parties submit a matter to arbitration, a trial court is generally without authority to modify the arbitrator's
award. Kosty v. S. Shore Harbour Cmty. Assoc., Inc., 226 S.W.3d 459, 465 (Tex. App.-Houston [1st Dist.] 2006,
pet. denied) (holding trial court erred by adding attorney's fees to award); Int'l Bank of Commerce-Brownsville
v. Int'l Energy Dev. Corp., 981 S.W.2d 38, 54-55 (Tex. App.-Corpus Christi 1998, pet. denied) (holding trial
court erred by adjusting post- judgment interest rate and by awarding additional attorney's fees); Monday v.
Cox, 881 S.W.2d 381, 384 (Tex. App.-San Antonio 1994, writ denied) (holding trial court erred in setting aside
arbitrator's award for attorney's fees). The FAA requires the trial court to confirm the arbitration award unless
grounds are offered to vacate, modify, or correct the award. 9 U.S.C. §§ 9, 11. Here, no grounds were offered
to omit PGV's share of the arbitration costs. That the award did not include a specific amount of the arbitration
costs does not preclude confirmation of the arbitrator's decision. Cf. Tex. Civ. Prac. & Rem. Code Ann. § 31.007
(a) (Vernon 2008) (“[I]t shall not be necessary for any of the parties to present a record of court costs to the
court in connection with the entry of a judgment.”).
We conclude the trial court had no authority to exclude PGV's award for arbitration costs from the final
judgment. The trial court therefore abused its discretion in denying PGV's motion to modify the final judgment
to reinstate the costs expressly awarded by the arbitrator. We modify the trial court's judgment to conform with
the arbitrator's award to PGV for its share of the total arbitration costs. We sustain PGV's first cross-issue.
Modification of Appellant's Name
In its second issue, PGV complains that the trial court erred when it denied PGV's request to modify the name
of appellant. According to PGV, after the trial court signed the final judgment confirming the arbitration award, it
discovered Ancor had merged with Ancor Holdings, LP. PGV believed Ancor Holdings, LP was the surviving
entity of the merger and assumed Ancor's liabilities. PGV asked the trial court to modify its judgment to
correctly list the defendant as “Ancor Holdings, LP,” instead of “Ancor Holdings, LLC.” PGV argues this is a
simple case of misnomer - PGV sued the correct defendant, just under the wrong name. The trial court,
however, denied PGV's request to substitute Ancor Holdings, LP as the judgment debtor in place of Ancor.
We conclude the trial court committed no error in denying PGV's request to modify appellant's name. We also
refuse PGV's request to include Ancor Holdings, LP as a judgment debtor. We are presented with two
separate, distinct legal entities: Ancor Holdings, LLC and Ancor Holdings, LP. Only Ancor Holdings, LLC was
sued, was served with process, and appeared in this suit. A judgment “shall not be rendered against one who
was neither named nor served as a party defendant.” Werner v. Colwell, 909 S.W.2d 866, 869-70 (Tex. 1995)
(citing Tex. R. Civ. P. 124); accord Mapco, Inc. v. Carter, 817 S.W.2d 686, 688 (Tex. 1991) (per curiam) (trial
court erred by entering judgment against entity never made a party); Fuqua v. Taylor, 683 S.W.2d 735, 738
(Tex. App.-Dallas 1984, writ ref'd n.r.e) (“Judgment may not be granted in favor of a party not named in the suit
as a plaintiff or a defendant.”). Moreover, a party does not waive the service of process requirement by merely
appearing as a witness in the case. See Werner, 909 S.W.2d at 870.
The Texas Rules of Civil Procedure require the judgment to “conform to the pleadings,” and “entry of the
judgment shall contain the full names of the parties, as stated in the pleadings, for and against whom the
judgment is rendered.” Tex. R. Civ. P. 301, 306. Our statutes of limitation and rules of practice afford plaintiffs
ample time and many means of figuring out the proper identity of the parties sued. Thomas v. Cactus Drilling
Corp. of Tex., 405 S.W.2d 214, 216 (Tex. Civ. App.-Austin 1966, no writ). We may not disregard those rules to
reach the requested result. Accordingly, we overrule PGV's second cross-issue.
CONCLUSION
We conclude the statutory grounds are the exclusive grounds for vacating or modifying an arbitration award
under the FAA. Because Ancor has failed to establish any statutory grounds for vacating the arbitration award,
it must be confirmed. In addition, because the trial court erred in omitting PGV's award for its share of the
arbitration costs from the judgment, we modify the trial court's judgment to conform with the arbitrator's award in
that regard. We affirm the trial court's judgment as modified.
MARY MURPHY
JUSTICE
080739F.P05
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Footnote 1 The Bank had previously recorded UCC-1 financing statements for this collateral. Those documents, however, were
in the name of OpenPoint's predecessors, Farris Point of Sale, Inc., ABS, Inc., and Hospitality POS, Inc. The three entities merged
in February 1999 and changed their name to OpenPoint. At the time the parties negotiated the Guaranty, the Bank had not filed
new financing statements under the OpenPoint name.
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Footnote 2 The arbitrator's Third, Fourth, and Fifth Interim Orders and Findings addressed the statute of limitations issue. In her
third order, she concluded Ancor's reformation counterclaim was not barred by the statute of limitations. PGV moved for
reconsideration of the limitations issue, and in response, the arbitrator issued the fourth order, upholding the decision that the
reformation counterclaim was not time-barred. PGV then moved for reconsideration or clarification of the fourth order. The
arbitrator issued the fifth order addressing the issue for the third time.
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Footnote 3 “The common law grounds to set aside an arbitration award include fraud, misconduct, or gross mistake that implies
bad faith and failure to exercise honest judgment.” Crossmark, 124 S.W.3d at 430 n.6; accord Graham-Rutledge & Co. v. Nadia
Corp., 281 S.W.3d 683, 688 (Tex. App.-Dallas 2009, no pet.); GJR Mgmt. Holdings, L.P. v. Jack Raus, Ltd., 126 S.W.3d 257, 263
(Tex. App.-San Antonio 2003, pet. denied); see also Kergosien v. Ocean Energy, Inc., 390 F.3d 346, 353 (5th Cir. 2004) (“Besides
the four statutory grounds, manifest disregard of the law and contrary to public policy are the only nonstatutory bases recognized
by this circuit for vacatur of an arbitration award.”), impliedly overruled by Citigroup Global Mkts., Inc. v. Bacon, 562 F.3d 349 (5th
Cir. 2009); Tanox, 105 S.W.3d at 252 (“'Manifest disregard of the law' is a judicially created ground for vacating arbitration
awards.”) (quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jaros, 70 F.3d 418, 421 (6th Cir. 1995)).
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Footnote 4 Indeed, this Court has previously stated that under the FAA, attacks on arbitration awards are limited to the grounds
set forth in sections 10 and 11. See, e.g., Roehrs v. FSI Holdings, Inc., 246 S.W.3d 796, 805-06 (Tex. App.-Dallas 2008, pet.
denied) (“'Under the FAA, the validity of an arbitration award is subject to attack only on grounds listed in sections 10 and 11 of
the Act.'”) (quoting Thomas James Assocs., Inc. v. Owens, 1 S.W.3d 315, 319-20 (Tex. App.-Dallas 1999, no pet.)); Antenna
Prods. Corp. v. Cosenza, No. 05-05-00701-CV, 2006 WL 1452102, at *2 (Tex. App.-Dallas May 26, 2006, no pet.) (mem. op.)
(rejecting appellant's non-statutory grounds for vacating arbitration award because these grounds not listed in section 10 of FAA).
In the wake of Hall Street, several Texas courts agree. See, e.g., Allstyle Coil Co., L.P. v. Carreon, No. 01-07-00790- CV, 2009 WL
1270411, at *2 (Tex. App.-Houston [1st Dist.] May 7, 2009, no pet.) (holding that non-statutory grounds for vacatur are “no longer
legally recognized grounds for vacating an arbitration award”); Cameron Int'l Corp. v. Vetco Gray Inc., No. 14-07-00656-CV, 2009
WL 838177, at *8 (Tex. App.-Houston [14th Dist.] Mar. 31, 2009, no pet. h.) (mem. op.) (following suggestion of Hall Street and
declining to accept appellant's request for legal and factual sufficiency review of arbitration award); Chandler v. Ford Motor Credit
Co., LLC, No. 04-08-00100-CV, 2009 WL 538401, at *3 (Tex. App.-San Antonio Mar. 4, 2009, no pet. h.) (mem. op.) (adopting Hall
Street and holding that appellants failed to demonstrate statutory basis for vacating arbitration award); see also Saipem Am. v.
Wellington Underwriting Agencies Ltd., No. 08-20247, 2009 WL 1616122, at *2 (5th Cir. June 9, 2009) (per curiam) (holding that
court may vacate arbitration award only if statutory ground supports vacatur); Nat'l Resort Mgmt. Corp. v. Cortez, No. 08-10805,
2009 WL 890622, at *1 (5th Cir. Mar. 31, 2009) (per curiam) (“The number of grounds for challenging an arbitration award has
been substantially reduced in light of [Hall Street] and [Citigroup].”); Ascension Orthopedics, Inc. v. Curasan, A.G., Civil Action No.
H-07-4033, 2008 WL 2074058, at *2 (S.D. Tex. May 14, 2008) (mem.) (stating Supreme Court's Hall Street decision “is
unequivocal that the grounds upon which vacatur may be based as listed in § 10 are exclusive”); In re Poly-America,L.P., 262 S.W.
3d 337, 362 (Tex. 2008) (Brister, J., dissenting) (“Both federal and state law require courts to enforce an arbitrator's decision, no
matter what it is, with very few exceptions. The allowable exceptions concern extrinsic or procedural matters like corruption, fraud,
or refusing to hear evidence; they do not include (as the Supreme Court just held) disregarding the law, even if a legal error is
'manifest.'”); Xtria L.L.C. v. Int'l Ins. Alliance Inc., 286 S.W.3d 583, 594 (Tex. App.-Texarkana 2009, pet. filed) (stating this Court has
based past application of manifest disregard standard on Fifth Circuit precedent and opining, though not deciding, that this Court
would follow Citigroup).
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Footnote 5 Specifically, the Supreme Court stated: “The FAA is not the only way into court for parties wanting review of arbitration
awards: they may contemplate enforcement under state statutory or common law, for example, where judicial review of different
scope is arguable.” Id.
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File Date[08/25/2009]
File Name[080739F]
File Locator[08/25/2009-080739F]