COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-17-00456-CV

CITY OF ARLINGTON APPELLANT

V.

TIBOR KOVACS APPELLEE

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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 048-261269-12

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MEMORANDUM OPINION1

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I. Introduction

Appellee Tibor Kovacs was initially terminated from the Arlington Police 

Department (APD) for violating a number of personnel rules, but an arbitrator 

later reinstated him. City of Arlington v. Kovacs, 508 S.W.3d 472, 473 (Tex. 

App.—Fort Worth 2015, pet. denied). The trial court confirmed the arbitration 

 1See Tex. R. App. P. 47.4.
2

award, and Appellant the City of Arlington appealed, asking this court to 

determine whether the arbitrator had exceeded his authority by relying on 

evidence of events that occurred after the City terminated Kovacs. Id. at 473, 

480. We decided that the arbitrator had exceeded his authority to resolve the 

dispute because the City’s personnel manual limited the extent to which the 

arbitrator could consider post-termination evidence and because the arbitrator’s 

written decision confirmed that he had improperly considered post-termination 

evidence in determining whether Kovacs had violated the personnel rules as 

charged. Id. at 473, 479. Accordingly, we reversed the trial court’s judgment and 

remanded the case to the trial court for further proceedings. Id. at 480.

On remand, Kovacs asked the trial court to send the matter to the 

arbitrator for reconsideration and argued that “[t]he Court of Appeals was wrong 

on several fronts.” The City opposed Kovacs’s motion and asked the trial court 

to vacate the arbitrator’s award and to enter a final judgment for the City.

The trial court vacated the award and remanded the case to the original 

arbitrator for rehearing. Kovacs moved to modify the trial court’s order of remand 

and to affirm the original arbitration award; he also requested findings of fact and 

conclusions of law. The trial court declined both requests. Each party filed a 

notice of appeal to this court.2 We may consider the record from the first appeal

 2This appeal is an accelerated interlocutory appeal because the trial court’s 

order essentially denies confirmation of the original arbitration award by following 

our instructions to vacate it. Compare Tex. Civ. Prac. & Rem. Code Ann. 

§ 171.098(a)(3) (West 2011) (allowing interlocutory appeal of an order 
3

in considering this second appeal. See Humphries v. Humphries, 349 S.W.3d 

817, 820 n.1 (Tex. App.—Tyler 2011, pet. denied).

In a single issue, the City asks us to determine whether the trial court erred 

by remanding the case for a new arbitration before the original arbitrator, arguing 

that the arbitration agreement only contemplates that the award may be set 

aside. In the first three of his four cross-issues, Kovacs attempts to revisit issues 

decided in the first appeal,3 and in his fourth cross-issue, he objects to the trial 

 

“confirming or denying confirmation of an award”), and id. § 171.098(a)(5) 

(allowing interlocutory appeal of an order “vacating an award without directing a 

rehearing” (emphasis added)), with E. Tex. Salt Water Disposal Co. v. Werline, 

307 S.W.3d 267, 271–72 (Tex. 2010) (holding that a trial court’s order denying 

confirmation of an award is not insulated from appellate review merely because 

the trial court also vacates the award and directs a rehearing and that “an order 

requiring a new arbitration is as final a decision as an appellate court’s remand of 

a case to a trial court for a new trial, and therefore appealable”).

3Specifically, in his first three issues, Kovacs argues that the trial court 

erred (1) by failing to sustain the arbitration award after remand from this court, 

claiming that in the first appeal, the parties and this court failed to recognize 

theories that were firmly based in the record and developed after remand and 

that, if properly recognized, would have resulted in upholding the trial court’s 

judgment affirming the arbitrator’s award for him; (2) by not finding that certain 

evidence was actually not post-termination evidence and thus was properly 

considered by the arbitrator; and (3) by not finding that the City should be 

estopped from arguing that improper post-termination evidence fatally flawed the 

arbitration award when the City offered that evidence to the arbitrator.

The law-of-the-case doctrine is the principle under which questions of law 

decided on appeal to a court of last resort will govern the case throughout its 

subsequent stages. Farmers Grp. Ins., Inc. v. Poteet, 434 S.W.3d 316, 329 (Tex. 

App.—Fort Worth 2014, pet. denied). Because the supreme court denied 

Kovacs’s petition for review following the issuance of our first opinion, that 

opinion is binding on any subsequent proceedings in this court. See id.
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court’s denial of his request for findings of fact and conclusions of law. We affirm 

the trial court’s judgment.

II. Discussion

As set out in our prior opinion, in 2010 and 2011, APD charged Kovacs 

with having violated City personnel manual rules and then fired him. See 

Kovacs, 508 S.W.3d at 473–74.

Although Kovacs argues in his second cross-issue that he was not officially 

terminated until after the conclusion of an administrative appeal in May 2011, 

Kovacs was notified of his proposed dismissal by Acting Police Chief Will 

Johnson on January 21, 2011, and given two days to file a response. In the 

January 21, 2011 notice, Kovacs was informed that if the acting chief decided 

that dismissal remained appropriate after reviewing his response, the dismissal 

would “become effective immediately following [that] decision” and Kovacs could 

then pursue a formal appeal to Police Chief Theron L. Bowman. Accordingly, we 

overrule Kovacs’s second cross-issue to the extent it is not otherwise barred by 

our previous opinion pursuant to the law-of-the-case doctrine.

Kovacs unsuccessfully attempted the administrative appeal and then 

requested that the termination decision be reviewed by arbitration. Id. at 474. 

The arbitrator acknowledged that he was limited by the City’s personnel manual 

to determining whether Kovacs violated the personnel rules “as charged”4 and 

 4The personnel manual states, in pertinent part, “In making a decision, the 

Arbitrator shall be limited to determining: 1) whether the employee violated the 
5

whether the disciplinary action was reasonable. Id. at 474. In his written 

decision, the arbitrator concluded that—based on events occurring after Kovacs’s 

termination5—the City had failed to establish by a preponderance of the evidence 

the most serious charges. Id. at 474–75. Thus, the arbitrator determined that 

Kovacs should be reinstated, given a twenty-day suspension, and awarded back 

pay. Id. at 475.

Pursuant to the personnel manual, the City filed a petition in district court 

seeking to vacate the arbitrator’s award on the ground that the arbitrator had 

exceeded his authority by improperly relying on evidence that was unavailable at 

the time that Kovacs was fired in January 2011. Id.

The trial court determined that Kovacs was not entitled to back pay during 

the time he was incarcerated but otherwise confirmed the award, and the City 

appealed to this court, raising the same argument as to the arbitrator’s having 

exceeded his authority. Id. We agreed, reversed the trial court’s judgment 

confirming the arbitration award, and remanded the case to the trial court for 

further proceedings. Id. at 479–80.

 

personnel rules, as charged, and 2) whether the disciplinary action imposed is 

reasonable.”

5Specifically, the arbitrator considered that in March 2011, Kovacs was nobilled on four felony charges (family violence, attempted sexual assault, and two 

retaliation charges) and his fiancée’s application for a protective order against 

him was denied, and that in April 2011, the complainant in the other charges 

signed an affidavit of nonprosecution. Kovacs, 508 S.W.3d at 474–75.
6

In the first appeal, Kovacs argued that the City had waived any objection to 

the arbitrator’s consideration of the post-termination evidence because it did not 

object when the complained-of evidence was elicited during the arbitration. Id. at 

475 n.4. In his third cross-issue in the instant appeal, he now argues that the 

City should be estopped from arguing that the evidence fatally flawed the 

arbitration award “due to well-established rules against ‘sandbagging,’” when the 

City itself offered the evidence.

We noted in our first opinion that the City had advised the arbitrator at the 

outset of the proceeding that it had to prove that the policy violations occurred as 

alleged “given the facts available to the decision-maker at the time the discipline 

was imposed,” and we overruled Kovacs’s argument. Id. (emphasis added). 

Further, we observed that post-termination evidence has no bearing whatsoever 

on the inquiry of whether an employer has just cause to terminate an employee, 

and an arbitrator exceeds his authority when he considers such evidence in that 

context. Id. at 477–78. Accordingly, we stated that the post-termination 

evidence had no relevance as to whether Kovacs was arrested, charged, or 

arrested and charged, as set out in the first three inquiries in the City’s first 

charge under the personnel manual. Id. at 478. We then had to determine for 

what purpose the arbitrator considered the post-termination evidence as to the 

remaining charges and held that the arbitrator had considered it for an improper 

purpose. Id. at 478–79. At this stage, pursuant to the law-of-the-case doctrine, it 

does not matter who presented any improperly considered evidence, and we 
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overrule Kovacs’s third cross-appeal issue. See id.; Farmers Grp. Ins., Inc., 434 

S.W.3d at 329.

In its sole issue in this appeal, the City argues that the trial court erred by 

remanding the case for a new arbitration before the original arbitrator because 

the arbitration agreement at issue contemplates only that the award may be set 

aside.

The personnel manual, in section 111.53, “Suit to Set Aside an Arbitrator’s 

Decision,” states,

Judicial Review. A state district court may set aside an 

Arbitrator’s decision only on the grounds that the Arbitrator was 

without jurisdiction or exceeded his/her authority, or that the decision 

is manifestly a violation of law. In no event is a de novo review 

available to determine: 1) whether the employee violated the 

personnel rules, as charged, or 2) whether the disciplinary action 

imposed is reasonable. A suit brought under this provision will be 

heard by the trial court without a jury. The suit must be filed in 

district court within ninety (90) days of the Arbitrator’s written 

decision. The petition must be brought in Tarrant County, Texas.

As we stated in our first opinion, judicial review of an arbitration award is 

extraordinarily narrow and focuses on the integrity of the process, not the 

propriety of the result. Kovacs, 508 S.W.3d at 476. We reversed the trial court’s 

judgment confirming the arbitration award because the arbitrator had exceeded 

his authority by improperly considering post-termination evidence in determining 

whether Kovacs violated the City’s personnel rules as charged, and we 

remanded the case to the trial court “for further proceedings.” Id. at 479–80.
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Unfortunately, the personnel manual is silent as to the trial court’s next 

specific step with regard to the “further proceedings” that we mandated. But 

while the City argues that the only step the trial court could have taken after 

setting aside the arbitrator’s decision would have been to enter judgment for the 

City, we disagree.

First, because the arbitration provision does not address whether the trial 

court can grant a rehearing, we must look to the relevant law that governs 

arbitration actions in Texas, which is found in the civil practice and remedies 

code.6 See Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84, 101 (Tex.) (referring to 

the TAA as a default), cert. denied, 565 U.S. 963 (2011); see also Hoskins v. 

Hoskins, 497 S.W.3d 490, 495–97 (Tex. 2016) (interpreting distinction between 

parties’ agreement in Nafta Traders, which contained a clear restriction on 

arbitrator’s authority, and the TAA’s statutory vacatur grounds when the parties 

did not agree to limit arbitrator’s authority).

Identical to one of the two grounds for setting aside the arbitrator’s 

decision included in the arbitration provision at issue here, section 

171.088(a)(3)(A) provides that on the application of a party, the court shall vacate 

an award if an arbitrator exceeded his power. See Tex. Civ. Prac. & Rem. Code 

Ann. § 171.088(a)(3)(A) (West 2011). As to the proper procedure following the 

vacatur of an arbitrator’s award, section 171.089(b) provides, “If the award is 

 6Both parties refer us to the Texas Arbitration Act (TAA)’s provisions to 

support their arguments.
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vacated under Section 171.088(a)(3), the court may order a rehearing before the 

arbitrator[] who made the award or [his] successor[] appointed under Section 

171.041.” Id. § 171.089(b) (West 2011) (emphasis added). Pursuant to 

government code section 311.016(1), the use of “may” creates discretionary 

authority, see Tex. Gov’t Code Ann. § 311.016(1) (West 2013), and the 

arbitration clause here evinces no intent to deny the trial court this discretion.7

Further, based on the clause’s express terms, which we construe de novo, 

see Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011), if an arbitrator’s 

decision is set aside under the personnel manual, an arbitration rehearing is the 

only logical next step. Because, under the express terms of the personnel 

manual, the trial court lacked the authority to conduct a de novo review to 

determine what the arbitrator should have decided, a new decision by the 

arbitrator is necessary to determine the final outcome. Accordingly, we overrule 

the City’s sole issue.

In his fourth cross-issue, Kovacs argues that the trial court erred by 

refusing to issue findings of fact and conclusions of law. We overrule his fourth 

cross-issue because the trial court’s hearing on remand was not an evidentiary 

hearing. See Int’l Union v. General Motors Corp., 104 S.W.3d 126, 129 (Tex. 

 7The City asserts that to construe the arbitration clause to indicate that 

rehearing is discretionary would require us to “impermissibly rewrite the contract

or add to its language instead of enforcing it as written.” But because the 

arbitration clause is silent on the matter, we instead consider the default 

provisions of the TAA in our review.
10

App.—Fort Worth 2003, no pet.) (holding findings of fact and conclusions of law 

are appropriate following an evidentiary hearing if the trial court is called upon to 

determine questions of fact based on conflicting evidence but not when the trial 

court rules without determining questions of fact).

Based on our conclusion that the trial court did not abuse its discretion by 

ordering a rehearing, we need not reach Kovacs’s remaining cross-issue 

regarding the theories that he claims were developed in the trial court after 

remand. See Tex. R. App. P. 47.1.

III. Conclusion

Having overruled the City’s sole issue and Kovacs’s dispositive crossissues, we affirm the trial court’s judgment.

/s/ Bonnie Sudderth

BONNIE SUDDERTH

CHIEF JUSTICE

PANEL: SUDDERTH, C.J.; MEIER and GABRIEL, JJ.

DELIVERED: June 21, 2018