### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00199- CV

Joe Taylor, Appellant

v. P ete DeRosa, P ete r De Rosa, Lind a DeRosa, M ark DeRosa, C reat ion E xpedition s and Cre ation Exp editions, In c., Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 353 RD JUDICI AL DISTRICT NO. D-1 -GN-0 7-0 0294 0, H ONO RAB LE MARGARET A. CO OP ER, JUDGE P RESIDING

M E M O R A N D U M O P I N I ON Appellant J oe Taylor sued appellee s Pete De R osa, Peter DeRosa, L inda DeRosa, Mark DeRosa, C rea

tion Ex peditions, and C reation Ex peditions, I nc. (collectively the “De Rosas”) objecting to an a

r b it r a ti o n d e c ision stemming from Taylor’s alleg ed brea ch of a settlement ag ree ment among the parties. The DeRosas answe red and filed a motion to confirm the arbitra l awa rd pursuant to civil prac tice and reme dies code section 171.0 8 7

. See Tex. Civ. Prac. & Rem. Code Ann. § 171 .087 (West 2005). The trial court render ed judgment deny ing Tay lor’s m otion to vacate t he arbitra l awa

rd and g ranting the DeRosas’ motion to confirm the awa rd. Taylor bring s this restric ted appea l. I n two issues, he claims that (1) the trial cour t erre d beca

use it was without jurisdiction to enter the awa

rd, and (2) the injunction forbiddin g h i m t o disparag e or defa me the DeRosas is an unconstitutional prior restra int on his fre e-spe ech rig hts. We will aff irm the trial court’s judgme nt.F ACTUAL AND P ROCEDURAL BACK GR OUND The controversy among the parties stems from a dispute over the actua l discovere r and ultimate owner of the fossiliz ed rema ins of an allosaurus, or allosaur, the g enus name g iven to

sever al specie s of larg e meat-e ating dinosaurs that lived during the late J urassic p eriod, approximately 145 milli on y ear s ag o. The parties mediated their dispute in Austin and memorialized their u n d erstanding in a settl ement agr eeme nt. Be cause their di spute involved public acc usations and rec riminations, the settlement ag ree ment included a non-dispar ag ement cla use for bidding a ny party from criticizing or disparag ing the other parties pub l i cl y . After Taylor alleg edly publicly disparag ed the DeRosas numerous times, they demande d arbitra tion p u r s u a n t to th e a r b it r a ti o n c la u se in the settlement ag ree ment. After a hear ing in Travis County , the arbitra tor found that Taylor had violated the non-dispar ag ement cla use of the se ttlement ag ree ment twenty times and was likely

to

co n t i n u e t o disparag e the DeRosas. He awa rded the DeRosas $129,399.64 for damag es and attorney ’s fee s and issued an injunction prohibiting Taylor from disparag ing the DeRosas or any one else involved in the allosaurus projec t and from criticizing a film that the DeRosas made about the allosaurus proje ct.

Taylor filed sui t in Crosby County objectingto the awa rd on seve ral g rounds. The DeRosas filed a motion to transfe r the case to Travis County pursuant t o the mandatory venue provision in the civil prac tice and reme dies code. See id. § 171.096 (West 2005) (if hear ing befor e

ar b i t ra tors was held, venue is mandatory in county wher e hear ing was held). After the ca s e wa s transfe rre d to T ravis County , the DeRosas filed an amende d answe r and motion to confirm the

2arbitra l awa rd. After a hear ing at which Taylor did not participa te, the trial court rende red judgme nt confirming the awa

rd. Tay lor bring s this restricted a ppeal.

STANDARD OF REVIEW “To preva il on a restric ted appea l, [t he appea ling party ] must establish that: (1) it filed notice of the restric ted ap p ea l wi t h i n six months afte r the judgme nt was signe d; (2) it was a party to the underlying lawsuit; (3) it did not participa te in the hear ing that resulted in the judgme nt complained of and did not timely file any postjudgment motions or reque sts for finding s of fac t and conclusions of law; and (4) err or is appar ent on the fac e of the rec ord.” Alexan der v. L yn d a ’s Boutique , 134 S.W .3d 845, 848 (Tex. 2004) (citing Tex. R. Civ. P. 26.1(c) , 30; Quaestor Invs., Inc.

v. State of Chiapas , 997 S.W .2d 226, 227 (Tex. 1999)). We cannot consider any extrinsi c evidenc e;

our revie w is limit ed to the fac e of the rec ord. Id. Finding the fourth require ment dispositi ve in the prese nt case , we ne ed not discuss Tay lor’s complianc e with the first thre e.

DISCUSSIO N By his first issue, Taylor asser ts that the trial court did not have jurisdiction to enter judgme nt on the arbitra l awa rd beca use, pursuant to the Uniform Commerci al C o de (“U CC”), he discharg ed his duties under the arbitra l awa rd, which he claims constituted an “of fer ,” by sending to the DeRosas’ counsel an instrument entitled “conditional accep t an ce.” Be cause the DeRosas failed to respond to his “conditional acc eptanc e” within three day s, Taylor asser ts that his acc eptanc e

was “dishonored” by the DeRosas, and thus no “contr act” wa s co n s u m mated from the arbitra l

3awa

rd’s “ offe r.” Ta

y lor rea sons that this means that he owes the DeRosas nothing and, the ref ore, the cour t had no jurisdiction to render judgme nt ag ainst him. Taylor misunderstands the impor t of an arbitra l awa rd and the applicability of the Uniform C ommercia l Code. The UCC applies only to a sale of g oods, which is not prese nt here

. See Tex. Bus. & Com. Code Ann. § 2.102 (West 2009). Fur thermore , the arbitra l awa rd in this case i s n o t a co n t ra ct , n or is it an offe r to make a contra ct that Tay lor could acc ept or reje ct. I t is a binding adjudication resulting from an arbitra tion proce eding authorized by the parties’ settlement ag ree ment over which the court has jurisdiction to rende r judgme nt. See Tex. Civ. Prac. & Rem. Code Ann. § 171.081 (West 2005). There is no err or on the fac e of the rec ord that would lead us to conclude that the t rial court lacked jur isdiction to render judg ment confirming the ar bitral awa rd. See A lexande r , 134 S.W .3d at 848. Consequently , we ove rrule T ay lor’s first issue.

By his second issue, Taylor complains that the trial court’s judgme nt enjoining him from disparag ing the DeRosas constitutes an unconstitutional prior restra int on his fre e-spe ech r ig h ts under the Texas Consti tution. See Tex. Cons t. art. I , § 8. Whil e Ta ylor fails to specif

ically point 1 out any err or on the fa ce of

the re cord, w e could, by

liberally construing his br iefs, assume tha t he considers the injunction itself to b e er ror beca use i t impinges his fre edom of speec h. As he notes in his brief, prior r est raints are usually unconstitutional, see Ex par te Pri ce , 741 S.W .2d 366, 369 (Tex. 1987) (Gonzalez, J ., concur ring ); howeve r, determining if the injunction in the present case

Taylor does not attack the power of the arbitra t or to awa rd injunctive relief

. See J.J. 1 Greg o r y Go urmet Servs., Inc. v. Antone’s Imp. Co. , 927 S.W .2d 31, 35-36 (Tex. App.—Houston 1995, no writ) (unless arbitra tion agr ee m en t provides otherwise, arbitra tor may awa rd injunctive relief

). 4is an unconstitutional infring ement on Taylor’s fre e-spe ech rig hts would involve an inquiry bey ond

the “f ace of the re cord,” a task outside our limited revie w in a re stricted appe al. We cannot say , from the fac e of this rec ord, th at t h er e is err or in the trial court’s judgme nt. Fur

thermore , beca

use arbitra tion is a favor ed means of dispute resolution, our revie w of

an arbitra l awa

rd—eve n in the case of a normal appea l—is very limit ed. Universal Computer Sys., In c. v. Dealer Solutions, L.L.C

. ,183 S.W .3d 741, 752 (Tex. App.—Houston [1st Dist.] 200 5 , p et
. denied)

. We indulge ever y rea sonable presumption in favor of the arbitra tor’s decision and indulge

none ag ainst it. CVN Group, Inc. v. Delgado , 95 S.W .3d 234, 2 3 8 (T ex . 2002). “Review is so limit ed that a court may not vacate an arbitra tion awa rd even if it is based upon a mistake of fac t or law.” Universal Computer Sys., Inc. , 183 S.W .3d at 752. I n the prese nt case , neither party reque sted that a rec ord be made of the arbitra tion proce eding , so we cannot even revie w the evidenc e that the arbitra tor considere d in deciding that an injunction was appropr iate here

. We would, there fore , have to indulge ever

y reas o n ab l e presumption in favor of t he arbitrator’s decision, including those that would be nec essar

y to sustain a prior re straint on speec h. Moreove r, the injunction in the prese nt case mere ly serve s to enfor ce a barg ained- for provision of the p ar t i es ’ settlement contra ct—the non-dispara g ement clause

. I n essenc e, the injunction imposes specific perf ormanc e on Taylor. The effe ct of the i njunction here is simpl y to forc e Taylor to comply with t h e t er m s o f a barg ained- for ag ree ment that provided him with substantial monetary compensa tion. See, e.g. , Cohe n v. C o w l es Media Co. , 501 U.S. 663, 671 (1991) (“The parties themselves

. . . deter mine the scope of their legal o b l i gat ions, and any restric tions that may be place d on the publication of truthful information are self-im p o s ed

. ”);

5Perri co n e v. Perricone , 972 A.2d 666, 682 (Conn. 2009) (“We are persua ded by the weig ht of

authority that an ag ree ment that restric ts speec h, but that does not expressly ref er to first amendment rig hts, constitutes a valid waiver of those rig hts, as lo n g as t h e wa i ver was intelligent and voluntary .”); Pierce v. St. Vrain Valley Sch. Dist. , 981 P.2d 600, 604 (Colo. 1999) (“H ere , the parties imposed their own restric tions [by contra ct] on their ability to speak publicly

. . . . Enforc ement of the settlement ag ree ment does not violate the First Amendment.”) ; Aultcare Corp. v. Roach , No. 2007CA0009, 2007 WL 3088036, at *3 (Ohio App.—5th Dist. Oct. 27, 20 0 7 ) ( u p h e ld injunction enfor cing non-dispara g ement clause over appellant’ s objection that it was prior restra int on speec h beca use “the trial court only order ed the continuation of the restr ictions enter ed into voluntarily by appellant” ). I n any event, our revie w in a restric ted appea l is limit ed to the fa ce o f t h e rec ord; beca use there is no error

on the fa ce of

the re cord, w e over

rule Ta y lor’s sec ond issue.

CONCLUSION Having overr u led Taylor’s two issues on appea l, we aff irm the judgme nt of the trial court.

__________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Affir med Filed: Mar ch 24, 2010

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