COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

PROVIDIAN BANCORP SERVICES

N/K/A WASHINGTON MUTUAL AND

F/D/B/A PROVIDIAN FINANCIAL

CORPORATION,

 Appellant,

v.

CONSTANCE THOMAS,

 Appellee.

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No. 08-07-00246-CV

Appeal from the

County Court at Law No. 5

of El Paso County, Texas

(TC#2004-4101)

O P I N I O N

Providian Bancorp Services n/k/a Washington Mutual and f/d/b/a Providian Financial

Corporation (“Providian”) appeals the trial court’s confirmation of an arbitration award in favor of

Appellee, Constance Thomas. We affirm the judgment of the trial court.

I. BACKGROUND

In April of 2003, Thomas entered into a written employment agreement (the “Employment

Agreement”) with Providian. Thomas, an African-American female, was hired to work as a team

manager in Providian’s El Paso facility. Soon after she was hired, Thomas concluded that she was

being subjected to racial discrimination by Providian.

On September 27, 2004, Thomas filed suit against Providian and Jackie Warner, her superior.

Thomas asserted claims for employment discrimination and retaliation, pursuant to the Texas Labor

Code, see TEX. LAB. CODE ANN. §§ 21.051 and 21.055, and for assault and battery. Among other

things, Thomas alleged that, at or near the time that Providian hired her, it hired a younger, lessqualified, non-African-American male, to whom it paid a higher salary; that Warner called her
“Blondie,” which Thomas took to be a derogatory comment concerning her race; that, after she

complained about her treatment, Providian continually changed her team members and her shift

times; and that Warner slapped her on one occasion.

Providian moved to compel arbitration and to stay the proceedings, based upon an arbitration

clause (the “Arbitration Clause”) contained in her Employment Agreement, which provided, in

pertinent part:

[I]n case of any dispute or disagreement arising out of or in any way related to this

Agreement, your employment with us, or the termination of your employment

(including, but not limited to, claims of discrimination, harassment, wrongful

discharge, breach of contract, tortious conduct, statutory violations or any injury to

your physical, mental or economic interests), you and the Company agree to submit

the dispute or disagreement to binding arbitration before JAMS/Endispute (or its

successor or a mutually-agreed upon arbitrator at AAA if JAMS/Endispute is unable

or unwilling to hear the dispute), pursuant to the California Arbitration Act, CCP

§ 1280 et seq. The costs and fees of the arbitrator shall be paid by the Company,

except that where you initiate arbitration under this paragraph, you will be required

to pay a fee equal to an initial court filing fee. Any party to the arbitration shall be

entitled to take discovery as provided under the California Arbitration Act , and each

party will be entitled to all remedies as provided by the substantive law pursuant to

which the claims are made. The Rules of Evidence will apply. Any decision or

award by the arbitrator shall be in writing and shall include a summary of findings

of fact and law on which the decision or award is based, and such decision is final

and binding, subject to judicial review as provided by theCalifornia Arbitration Act.

On March 14, 2005, the trial court granted the motions and ordered the parties to proceed to

arbitration before former judge Enrique Peña, an arbitrator employed by Texas Arbitration Mediation

Services, Inc. (“TAMS”). On May 16, 2005, the parties’ attorneys entered into a letter agreement,

pursuant to Texas Rule of Civil Procedure 11 (the “Rule 11 Agreement”), in which various

agreements were made concerning the pending arbitration proceeding. First, the parties agreed that

the Rule 11 Agreement would be in addition to all other terms and conditions of the Arbitration

Clause. The Rule 11 Agreement further provided that “the parties have also agreed that the TAMS

rules (‘TAMS Rules’) will apply. To the extent the TAMS Rules or this agreement conflict with the
Arbitration Clause, the parties agree that the TAMS Rules or this agreement will apply.” Following

the foregoing statement were various provisions concerning discovery and scheduling. Subsequent

to these, the Rule 11 Agreement provided that, “to the extent that the agreements set forth above

conflict with the TAMS Rules, this agreement, set forth herein, shall control.” The final provision

of the Rule 11 Agreement stated that “judicial review will be conducted pursuant to the Texas

General Arbitration Act. CIV. PRAC[.] & REM. CODE §171.001 et seq.”

Following a hearing, Arbitrator Peña issued a written award which contained his findings and

conclusions. Peña found that Thomas failed to establish her claims of either racial discrimination

or retaliation. The arbitrator did find, however, that, although there was conflicting testimony of the

event, Warner assaulted Thomas by slapping her on the back of the head. For the assault, the

arbitrator awarded Thomas damages in the amount of $1; however, he also awarded a total of

$24,500 in attorneys’ fees to her two attorneys.

Thomas brought a motion to confirm the arbitrator’s award, and Providian moved to modify

the attorneys’ fees portion of the award. Following a hearing on the motions, the trial court entered

an order denying Providian’s motion and confirming the arbitrator’s award. Providian appeals the

decision of the trial court and requests that this Court reverse the trial court and modify the award

of attorneys’ fees to Thomas to zero.
II. DISCUSSION

A. Standard of Review

We review confirmation of an arbitration award de novo. GJR Mgmt. Holdings, L.P. v. Jack

Raus, Ltd., 126 S.W.3d 257, 262 (Tex. App.--San Antonio 2003, pet. denied); American Realty

Trust, Inc. v. JDN Real Estate-McKinney, L.P., 74 S.W.3d 527, 531 (Tex. App.--Dallas 2002, pet.

denied). In Texas, review of an arbitration award is extremely narrow. Hisaw & Assocs. Gen.

Contractors, Inc. v. Cornerstone Concrete Sys., Inc., 115 S.W.3d 16, 18 (Tex. App.--Fort Worth

2003, pet. denied); Cooper v. Bushong, 10 S.W.3d 20, 24 (Tex. App.--Austin 1999, pet. denied).

We indulge every reasonable presumption in order to uphold the arbitration award. Hisaw, 115

S.W.3d at 18; Cooper, 10 S.W.3d at 24. “[T]he authority of arbitrators is derived from the

arbitration agreement and is limited to a decision of the matters submitted therein either expressly

or by necessary implication.” Gulf Oil Corp. v. Guidry, 160 Tex. 139, 143, 327 S.W.2d 406, 408,

37 Lab. Cas. (CCH) ¶ 65,669 (1959).

Traditional contract principles are used to interpret arbitration agreements. In re Phelps

Dodge Magnet Wire Co., 225 S.W.3d 599, 603 (Tex. App.--El Paso 2005, original proceeding

[mand. denied]). We will enforce an arbitration agreement according to its plain meaning. Ysleta

Indep. Sch. Dist. v. Godinez, 998 S.W.2d 700, 702 (Tex. App.--El Paso 1999, no pet.).

B. The Arbitration Award

In its sole issue on appeal, Providian challenges the trial court’s confirmation of the

arbitrator’s award of attorneys’ fees and argues that the award should be modified to eliminate any

award of fees. “Absent an allegation of a statutory or common law ground to vacate or modify an

arbitration award, a reviewing court lacks jurisdiction to review the arbitrator’s decision.” Lee v. El

Paso County, 965 S.W.2d 668, 671-72 (Tex. App.--El Paso 1998, pet. denied). Providian does not
 Although the statute provides that attorney’s fees may be awarded to “the prevailing party” in a chapter 21 1

proceeding, such fees are rarely awarded to successful defendants. See, e.g., Wiltshire v. Humpal Physical Therapy,

P.C., 2005 WL 2091092, at *9 (Tex. App.--Corpus Christi Aug. 31, 2005, no pet.) (mem. op.); but cf. Elgaghil v.

Tarrant County Junior Coll., 45 S.W.3d 133 (Tex. App.--Fort Worth 2000, pet. denied) (attorney’s fees awarded to

prevailing defendant where chapter 21 plaintiff’s claims were groundless as a matter of law). Providian does not

complain about the arbitrator’s failure to award it any attorney’s fees based upon its success in the chapter 21 portion

of the proceeding.

assert a common law ground to modify the judgment; instead, it contends that it is entitled to

modification pursuant to the Texas General Arbitration Act (“TGAA”).

Under the TGAA, a court shall modify or correct an arbitration award if:

(1) the award contains:

(A) an evident miscalculation of numbers; or 

(B) an evident mistake in the description of a person, thing, or property

referred to in the award;

(2) the arbitrators have made an award with respect to a matter not submitted to them

and the award may be corrected without affecting the merits of the decision made

with respect to the issues that were submitted; or

(3) the form of the award is imperfect in a manner not affecting the merits of the

controversy.

TEX. CIV. PRAC. & REM. CODE ANN. § 171.091(a). Providian argues that the award may be

modified, because it is imperfect in form not affecting the merits of the controversy.

Providian makes two arguments in support. First, it contends that the Arbitration Clause

limits the parties to the recovery to which they would be entitled under the substantive law at issue

and that, under such law, there was no basis for Thomas to recover attorney’s fees. The Labor Code

allows a court to award reasonable attorney’s fees to the prevailing party on claims brought under

chapter 21. See TEX. LAB. CODE ANN. § 21.259. Accordingly, had Thomas prevailed upon her 1

discrimination claim or her retaliation claim, there would have been a statutory basis for an award

of attorneys’ fees to her. However, the only claim upon which Thomas prevailed was her common-
law assault claim. Thomas does not dispute that, under Texas law, she would not be entitled to

recover attorney’s fees for prevailing on a common-law assault claim. See Z.A.O., Inc. v. Yarbrough

Drive Ctr. Joint Venture, 50 S.W.3d 531, 550 (Tex. App.--El Paso 2001, no pet.) (“attorney’s fees

are not recoverable in tort actions”). Instead, she argues that the Rule 11 Agreement provides that

TAMS Rules apply to the arbitration and that the arbitrator had authority under those rules to award

her attorney’s fees.

The Arbitration Clause provides that “[a]ny party to the arbitration shall be entitled . . . to all

remedies as provided by the substantive law pursuant to which the claims are made” (emphasis

added). Prior to the arbitration, however, the parties entered into the Rule 11 Agreement, which

provides that TAMS Rules would apply and that, to the extent that TAMS Rules conflict with the

Arbitration Clause, TAMS Rules or the Rule 11 Agreement would apply. Thus, we must determine

whether there is a conflict between the particular TAMS rule at issue and the Arbitration Clause.

The TAMS rule states that “[t]he arbitrator or arbitral tribunal may grant any remedy or relief

that: The arbitrator or arbitral tribunal deems just and equitable, including, any remedy or relief the

parties would be entitled to as if the matter was heard in court . . . .” Clearly, the provision contained

in the Arbitration Clause restricts the arbitrator to those remedies available under the applicable

substantive law, whereas the latter provision grants the arbitrator broad authority to craft the

remedies he deems “just and equitable.” If the rule provided that the arbitrator may grant any remedy

or relief to which the parties would be entitled as if the matter were heard in court, then the two

provisions would have essentially the same effect and there would be no conflict. However, that is

not the case and, because the clauses do conflict, the parties’ Rule 11 Agreement dictates that the
 Providian argues that there is no conflict between the TAMS Rules and the parties’ arbitration agreement as 2

modified by the Rule 11 Agreement, because the TAMS Rules do not specifically address the award of attorneys’ fees.

However, neither the Arbitration Clause nor the Rule 11 Agreement addresses attorneys’ fees.

TAMS rule applies.2

Providian’s second argument is that the parties agreed that judicial review would be

conducted pursuant to the TGAA, which does not permit the award of attorneys’ fees, unless they

are provided for in the agreement to arbitrate or “by law for a recovery in a civil action in the district

court on a cause of action on which any part of the award is based.” TEX.CIV. PRAC. &REM.CODE

ANN. § 171.048(c). Providian contends that the agreement to arbitrate did not provide for attorney’s

fees and that there was no statutory basis for an award of fees. Providian argues that section

171.048(c) applies, because the Rule 11 Agreement states that judicial review will be conducted

pursuant to the TGAA. Thus, Providian appears to contend that the reference to “judicial review”

in the Rule 11 Agreement meant that all provisions of the TGAA, including section 171.048(c),

governed the entire arbitration proceeding and not merely the procedures for subsequent review.

A plain reading of the Rule 11 Agreement indicates that the parties intended to supplant the

TGAA rules for the arbitration proceeding with those of the TAMS Rules and the specific discovery

and scheduling agreements set out in the Rule 11 Agreement and intended that any subsequent

review of the arbitration award would be conducted pursuant to the procedures contained in the

TGAA.

In this regard, it is helpful to look at the structure of the TGAA itself. The TGAA is divided

into four subchapters: Subchapter A contains general provisions; subchapter B involves proceedings

to compel or stay arbitration; subchapter C contains various rules for the arbitration proceeding; and

subchapter D contains rules for subsequent court proceedings, including confirmation, vacation, and

modification of an arbitration award. Notably, section 171.048(c), upon which Providian relies, is
contained in subchapter C, which deals with rules for the arbitration proceeding, and not in

subchapter D. Accordingly, it does not appear that the parties intended that section 171.048(c) limit

the scope of the arbitrator’s award.

Even if section 171.048(c) were to apply, it would not preclude the award of fees in this case.

The parties’ agreement vested the arbitrator with the authority to award any remedy or relief that he

deemed just and equitable. This is sufficiently broad to include an award of attorney’s fees. See

Gillispie v. Village of Franklin Park, 405 F. Supp. 2d 904, 913, 97 Fair Empl. Prac. Cas. (BNA) 604

(N.D. Ill. 2005) (noting that a rule allowing any remedy or relief deemed just and equitable,

including any remedy or relief that would have been available in court, was a capacious grant of

authority sufficient to allow an award of attorney’s fees). Moreover, the TGAA, within the

subchapter governing court review, provides that “[t]he fact that the relief granted by the arbitrators

could not or would not be granted by a court of law or equity is not a ground for vacating or refusing

to confirm the award.” TEX. CIV. PRAC. & REM. CODE ANN. § 171.090. Accordingly, the fact that

there was not a statutory or other basis for a court to award attorney’s fees would not have been an

appropriate ground for the trial court to refuse to confirm the award. See Anchor Paving Co. v.

Trinh, No. 01-99-01199-CV, 2000 WL567645, at *3 (Tex. App.--Houston [1st Dist.] May 11, 2000,

pet. denied) (not designated for publication) (district court properly refused to vacate award of

attorney’s fees, because section 171.090 prevailed over section 171.048(c)(2)).

Providian relies on Pheng Investments, Inc. v. Rodriguez, 196 S.W.3d 322 (Tex. App.--Fort

Worth 2006, no pet.). In Pheng, the purchaser of an apartment building brought claims against the

seller for breach of contract, statutory fraud, common law fraud, and various other claims. Id. at 327.

The case proceeded to arbitration, and the arbitrator found that the seller made false and misleading

statements to the purchaser to induce the sale of the property. The arbitrator awarded the purchaser
damages and attorney’s fees in the amount of $50,000. The buyer moved to confirm the award under

the TGAA, and the seller moved to vacate it under the TGAA, Federal Arbitration Act, common law,

and public policy. The district court confirmed the arbitration award in all respects. On appeal, the

Fort Worth Court of Appeals modified the arbitration award to eliminate the award of attorneys’

fees. Id. at 334. The court noted that under the TGAA, an arbitrator may only award fees as

permitted by section 171.048(c). Id. at 333. The contract at issue between the parties provided that

the prevailing party in any legal proceeding brought in relation to the contract would be entitled to

reasonable attorney’s fees. Id. However, there was no evidence that the fees were reasonable. Id.

Although section 27.01 of the Texas Business and Commerce Code may have provided a statutory

basis for the award, it required proof that fees were reasonable and necessary. Because the record

contained no evidence that the fees awarded were reasonable and necessary, the court modified the

award. Id. at 333-34.

The issue in Pheng was whether there was evidence that the fees awarded pursuant to the

parties’ arbitration agreement were reasonable and necessary. In the present case, the issue is

whether the arbitration agreement permitted the arbitrator to award fees, and Pheng does not address

this issue. Here, the parties agreed that the arbitrator could award any recovery or remedy that he

deemed just and equitable. We believe that this was broad enough to permit an award of attorneys’

fees in this case. We deny Providian’s sole issue on appeal.
III. CONCLUSION

We therefore affirm the judgment of the trial court.

KENNETH R. CARR, Justice

May 15, 2008

Before Chew, C.J., McClure, and Carr, JJ.