In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-22-00337-CV

___________________________

On Appeal from the 348th District Court

Tarrant County, Texas

Trial Court No. 348-314885-20

Before Kerr, Bassel, and Womack, JJ. 

Memorandum Opinion by Justice Bassel

SPEARS CONSTRUCTION MANAGEMENT, LLC, Appellant

V. 

PHYSICAL THERAPY DYNAMICS, PLLC; JRAD INVESTMENTS, LLC; AND 

FIRST GUARANTY BANK, Appellees
2

MEMORANDUM OPINION

I. Introduction

This is an appeal from an order granting a motion to vacate an arbitration 

award and denying a motion to confirm the award. In a single issue, Appellant Spears

Construction Management, LLC argues that the trial court erred by granting the 

motion to vacate filed by Appellees Physical Therapy Dynamics, PLLC and JRAD

Investments, LLC (jointly, Defendants)1 because “no complete record exists or was 

presented of the arbitration.” Because Defendants failed to request that a transcript

be made of the final arbitration hearing and the continuance hearing and because the 

record contains no motion for continuance, Defendants have failed to bring forth a 

sufficient record to vacate the arbitration award on the three grounds that they raised 

in the trial court. In the absence of a record of the challenged proceedings, the trial 

court therefore erred by vacating, rather than confirming, the arbitration award. 

Accordingly, we reverse the trial court’s July 29, 2022 order granting Defendants’

1

Appellee First Guaranty Bank intervened in the suit after the arbitrator issued 

the final arbitration award and claimed to have a senior lien on Defendants’

property—allegedly the same property that “Spears ha[d] asked that the [trial] [c]ourt 

[to] permit it to foreclose on” in satisfaction of the arbitration award. Although 

Spears filed a motion to strike the petition in intervention, no order deciding that 

motion appears in the appellate record; the propriety of the intervention is therefore

not before us. And so for purposes of this opinion, we refer to First Guaranty Bank 

as Intervenor and note that Intervenor “writes separately only to supplement the 

arguments [made by Defendants] that support this [c]ourt’s affirming the trial judge’s 

decision to vacate the arbitration award at issue.”
3

motion to vacate the arbitration award and denying Spears’s motion to confirm, and 

we render judgment confirming the final arbitration award issued on January 5, 2022.

II. Background

On or about August 23, 2018, Spears and Defendants entered into an AIA 

Document A101-2017 Standard Form of Agreement Between Owner and Contractor 

(the Contract) for the completion of the Physical Therapy Dynamics New

Professional Facility (the Project) in Crowley. Pursuant to the Contract, Spears 

provided construction management and general contracting services to the Project for 

Defendants. The Contract contained a dispute resolution clause that provided that 

any claim subject to, but not resolved by, mediation would be submitted to binding

arbitration.

Spears filed suit in January 2020, alleging causes of action for breach of 

contract, violation of the Texas Prompt Payment Act, and violation of the Texas 

Construction Trust Fund Act; seeking to enforce a lien; and alternatively seeking to 

recover damages provided in quantum meruit. Spears also sought to recover its 

attorney’s fees. Defendants answered and also filed a counterclaim alleging various 

causes of action.

Nearly fourteen months after filing suit, Spears moved to compel arbitration. 

The parties agreed to remove their respective claims to arbitration and to stay and 

abate the case. The trial court signed an agreed order, ordering that Spears and 
4 

Defendants “and all of their claims be compelled jointly to one mandatory binding 

arbitration in accordance with the Federal Arbitration Act and Texas law.”2

No transcript from the arbitration appears in the appellate record; instead, the 

next document in the record is a motion dated February 2022 filed by Spears asking

the trial court to confirm the arbitration award. In the motion to confirm, Spears 

states that it initiated an arbitration in April 2021 and that

the final hearing was conducted on November 8, 2021[,] remotely in 

Texas. At the conclusion of the final hearing and final briefing of the

parties, on January 5, 2022, the arbitrator entered a final award in favor 

of Spears and denying Defendants’ counterclaims and claims for fees 

and costs in their entirety . . . . 

Defendants filed a motion to vacate or correct the arbitration award and a 

response to Spears’s motion for entry of judgment. Defendants argued that if the 

arbitration award were confirmed, Spears would obtain a double recovery of

$145,393.203

 that had been previously paid. Defendants raised the following vacatur

2

Although the trial court did not make a finding as to whether the arbitration 

was governed by the Federal Arbitration Act or the Texas General Arbitration Act, 

the parties seem to agree that the TGAA governs. Moreover, “[b]ecause the 

substantive principles applicable to the analysis in this appeal and the available 

grounds to review an arbitration award are the same under both the FAA and the 

TGAA, we may find guidance in court decisions arising under either act.” Howerton v.

Wood, No. 02-15-00327-CV, 2017 WL 710631, at *2 (Tex. App.—Fort Worth Feb. 23, 

2017, no pet.) (mem. op.). 

3

Defendants explained the amount as follows:

Spears claimed that two allegedly unpaid invoices and corresponding Pay

Applications[—]Invoice 50/Pay Application 5 for $94,221.00 dated May 

13, 2019[,] and . . . Invoice 67/Pay Application 7 for $51,172.20 dated 
5

grounds: the award was obtained by fraud or other undue means; the arbitrator 

refused to postpone the final hearing after a showing of sufficient cause; and the 

arbitrator both refused to hear material evidence and denied Defendants the

opportunity to present material evidence.

After the motion to confirm and the motion to vacate were filed, the parties 

filed numerous responses and replies. Spears filed a response to Defendants’ motion

to vacate, arguing that months before the final hearing, Defendants had all evidence in 

their possession to assert affirmative defenses of payment and waiver but did not do 

so until four days before the final hearing4 and that Defendants never filed an actual 

motion for continuance but instead requested an emergency hearing. Defendants 

filed a reply brief in support of their motion to vacate and later filed a supplement to 

their motion to vacate, attaching bank statements from Spears’s bank and emails 

about the missing payments. Spears filed a response to Defendants’ supplement. 

September 18, 2019[—]were not paid and sought prompt pay interest on 

those amounts.

. . . [Defendants’] construction loan lender, Intervenor . . . paid 

these invoices and corresponding Pay Applications. [References to 

exhibits omitted.]

4

In April 2022, which was three months after the final arbitration award was 

signed, Defendants filed their second amended answer and affirmative defenses to 

add the affirmative defense of payment. Later that same month, Defendants filed 

their third amended answer and affirmative defenses and attached as an exhibit a chart 

showing payments to support their affirmative defense of payment.
6

Defendants then filed a second reply brief and supplement in support of their motion

to vacate the arbitration award.

Intervenor also filed a response to Spears’s motion to confirm the arbitration 

award and incorporated by reference the arguments made in Defendants’ motion to

vacate or correct the arbitration award and later supplemented its response. 

Intervenor filed a motion for sanctions and request for attorney’s fees to which Spears 

responded. The trial court denied Intervenor’s request for sanctions and attorney’s 

fees.

At the hearing on the competing motions, Defendants argued that the bank 

statements produced by Spears were different than those that Defendants had

obtained from Spears’s bank and were therefore evidence of fraud. Spears argued 

that with “a motion to vacate, courts are unanimous that it’s not time to relitigate 

what was hashed out and brought forth . . . to the arbitrator” and that “there was no 

transcript and no record in this case of the actual final hearing.” After hearing the 

parties’ arguments,

5 the trial court granted Defendants’ motion to vacate, denied 

Spears’s motion to confirm the arbitration award, vacated the award, and ordered the 

matter to be reheard before the arbitrator who had made the award or his successor 

appointed as specified in the parties’ agreement to arbitrate. This appeal followed.

5

No evidence was admitted during the hearing, and the record from the hearing 

is only thirty pages.
7 

III. Analysis

In its sole issue, Spears argues that the trial court erred by vacating the 

arbitration award when there was no record of the arbitration hearing or the 

continuance hearing. Spears argues that

[w]ithout a record of the [f]inal [h]earing, [Defendants’] [v]acatur

[g]rounds are conjecture. Without a record, the trial court has no idea 

what testimony was presented to the arbitrator and what he took into 

consideration in rendering the [a]ward, other than what the arbitrator 

himself discussed in the [a]ward – which addressed [Defendants’] 

[v]acatur [g]rounds allegations. Given what is detailed in the [a]ward, 

Texas [c]ourts must presume that . . . the evidence was adequate to 

support the [a]ward. [Record reference omitted.]

For the reasons discussed below, we agree.

A. Our Review

This court has previously set forth the review we give to arbitration awards,

and we borrow from a prior opinion setting forth that review:

An arbitration award is conclusive on the parties as to all matters of fact 

and law submitted to the arbitrator and has the effect of a judgment of a 

court of last resort. See CVN Grp., Inc. v. Delgado, 95 S.W.3d 234, 238 

(Tex. 2002). Accordingly, judicial review of an arbitration award is 

extraordinarily narrow, and we may vacate an arbitration award only in 

very unusual circumstances. See Oxford Health Plans LLC v. Sutter, [569 

U.S. 564, 568,] 133 S. Ct. 2064, 2068 (2013); Rain CII Carbon, LLC v.

ConocoPhillips Co., 674 F.3d 469, 472 (5th Cir. 2012); E. Tex. Salt Water

Disposal Co. v. Werline, 307 S.W.3d 267, 271 (Tex. 2010).

To protect the strong deference accorded to arbitration awards, 

we review a trial court’s ruling to vacate or confirm an arbitration award 

de novo based on the entire record. See Denbury Onshore, [LLC v. Texcal 

Energy S. Tex., L.P., 513 S.W.3d 511, 515 (Tex. App.—Houston [14th

Dist.] 2016, no pet.)]; Royce Homes, L.P. v. Bates, 315 S.W.3d 77, 85 (Tex. 

App.—Houston [1st Dist.] 2010, no pet.). All reasonable presumptions 
8 

are indulged in favor of the award, and the challenging party bears the 

burden to establish an allowable ground for vacatur. See Denbury Onshore, 

[513 S.W.3d at 515]; Amoco D.T. Co. v. Occidental Petroleum Corp., 343 

S.W.3d 837, 841 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). 

We must focus on the integrity of the process, not the propriety of the 

result. See Ancor Holdings, LLC v. Peterson, Goldman & Villani, Inc., 294 

S.W.3d 818, 826 (Tex. App.—Dallas 2009, no pet.).

Howerton, 2017 WL 710631, at *3. 

Additionally, the Texas Supreme Court has stated the requirements for the 

record and for demonstrating error in an arbitration award:

A court must have a sufficient[6] record of the arbitral proceedings, and 

complaints must have been preserved, all as if the award were a court 

judgment on appeal. For efficiency’s sake, arbitration proceedings are 

often informal; procedural rules are relaxed, rules of evidence are not

followed, and no record is made. These aspects of arbitration, which are

key to reducing costs and delay in resolving disputes, must fall casualty 

to the requirements for full judicial review. The parties can decide for 

themselves whether the benefits are worth the additional cost and delay, 

but the only review to which they can agree is the kind of review courts 

conduct. If error cannot be demonstrated, an award must be presumed 

correct. 

Nafta Traders, 339 S.W.3d at 101–02 (footnotes omitted). 

B. The Grounds for Vacatur

Allowable grounds for vacatur include the following: 

(a) On application of a party, the court shall vacate an award if:

6

Throughout Spears’s brief, it argues that the party challenging an arbitration 

award must bring forth a complete record. The Texas Supreme Court, however, has 

stated that a sufficient record is necessary. See Nafta Traders, Inc. v. Quinn, 339 S.W.3d 

84, 101 (Tex. 2011). Here, where no record was taken, the distinction does not come 

into play, but we note the correct terminology and standard stated in Nafta Traders. 
9 

(1) the award was obtained by corruption, fraud, or other undue 

means;

 (2) the rights of a party were prejudiced by:

 (A) evident partiality by an arbitrator appointed as a neutral 

 arbitrator; 

 (B) corruption in an arbitrator; or

 (C) misconduct or [willful] misbehavior of an arbitrator; 

(3) the arbitrators:

(A) exceeded their powers;

(B) refused to postpone the hearing after a showing of 

sufficient cause for the postponement;

(C) refused to hear evidence material to the controversy; or

(D) conducted the hearing, contrary to Section 171.043, 

171.044, 171.045, 171.046, or 171.047, in a manner that 

substantially prejudiced the rights of a party; or

(4) there was no agreement to arbitrate, the issue was not 

adversely determined in a proceeding under Subchapter B, and the

party did not participate in the arbitration hearing without raising 

the objection.

Tex. Civ. Prac. & Rem. Code Ann. § 171.088(a) (footnote omitted). Of these 

grounds, Defendants challenged the arbitration award on the grounds that the award 

was obtained by fraud or other undue means, that the arbitrator refused to postpone 

the final hearing after a showing of sufficient cause, and that the arbitrator refused to 

hear material evidence. Because the trial court granted Defendants’ motion to vacate 
10

without specifying the ground(s) on which it based its decision, we address each of 

the grounds in turn.

1. Fraud or Other Undue Means

The thrust of Defendants’ motion to vacate was that Spears had obtained the 

arbitration award “by fraud or undue means by withholding evidence and falsely 

claiming [that] it was not paid amounts that it had been paid.” Defendants argued 

that Spears, in support of its claim that Pay Apps 5 and 7 had not been paid, 

“presented a misleading exhibit – Arbitration Exhibit 13 – which clearly had its 

intended effect of misleading the [a]rbitrator to find that . . . Pay App 7 had not been 

paid.” Defendants further claimed that “Spears may have produced altered or 

incomplete bank records in support of its arguments that it was not paid.”

Defendants later filed a supplement to their motion to which various monthly

statements from Spears’s bank were attached in an attempt to show that the exhibit 

that Defendants had allegedly offered during the final arbitration hearing (a half-page 

bank statement covering 5/1/2019 to 5/31/2019) differed from the bank statement 

(a two-page document covering that same period of time) that Defendants had 

subpoenaed from Spears’s bank.

As noted above, no record was made of the arbitration hearing. Without a 

record from the final hearing, we are to presume the evidence was adequate to 

support the award. See Nafta Traders, 339 S.W.3d at 102; Shah v. Star Anesthesia, P.A., 

580 S.W.3d 260, 265 (Tex. App.—San Antonio 2019, no pet.) (“When there is no 
11

transcript of the arbitration hearing, the appellate court will presume the evidence was 

adequate to support the award.” (quoting GJR Mgmt. Holdings L.P. v. Jack Raus, Ltd., 

126 S.W.3d 257, 262–63 (Tex. App.—San Antonio 2003, pet. denied))).

Defendants do not argue that their vacatur grounds can be decided without a 

record from the arbitration hearing7 but contend instead that they “submitted ample 

evidence” to the trial court of an altered exhibit used at arbitration. They point to 

their reply briefing, “subpoenaed complete bank records,” a business-records affidavit 

for bank records, a document “showing Spears’[s] arbitration exhibit for [the] same 

bank statement [that had] removed itemized entries,” and the affidavit of the attorney 

who represented Defendants in the arbitration proceeding, and they quote a portion 

from the record of the hearing on the motion to vacate during which the allegedly 

fraudulent half-page bank statement was compared to the subpoenaed two-page bank 

statement.

Defendants fail to point out, however, that no evidence was admitted or 

attached to the record of the hearing on the motion to vacate. Additionally, counsel’s 

statements in post-arbitration briefing and briefing in this court concerning what 

occurred is not a substitute for a record of those proceedings. See Alia Realty LLC v. 

Alhalwani, No. 05-21-00265-CV, 2021 WL 4316119, at *3 (Tex. App.—Dallas Sept. 

7

See, e.g., Centex/Vestal v. Friendship W. Baptist Church, 314 S.W.3d 677, 685 (Tex. 

App.—Dallas 2010, pet. denied) (considering pleadings and arbitration agreement in 

deciding vacatur ground based on arbitrator exceeding his authority); Grand Homes 96, 

L.P. v. Loudermilk, 208 S.W.3d 696, 706 (Tex. App.—Fort Worth 2006, pet. denied) 

(same).
12

23, 2021, pet. denied) (mem. op.); see also Gordon v. Trucking Res. Inc., No. 05-21-00746-

CV, 2022 WL 16945913, at *6 (Tex. App.—Dallas Nov. 15, 2022, no pet.) (mem. op.) 

(stating that there was no record of the arbitration proceedings except the arbitration 

award and that although the motion to vacate purported to provide the background 

and procedural history of the arbitration, that description did not constitute a record 

of the documents and the proceedings before the arbitrator, nor was it evidence that 

could be considered by the trial court or appellate court). Furthermore, Defendants 

may not rely on exhibits attached to the pleadings before the trial court, or more 

specifically their motion to vacate, for evidentiary purposes. See Shah, 580 S.W.3d at

265–66 (declining to consider exhibits attached to motion to vacate).

Even assuming that the half-page bank statement was the complained-of

exhibit that was admitted during the final arbitration hearing and was discussed at the 

vacatur hearing, that document and the two-page bank statement list the same 

amounts for “OTHER CREDITS,” which is the line item where bank wires were 

posted. None of the totals were fabricated. Instead, Defendants did not understand 

Spears’s bank’s method of posting wire transfers as other credits instead of as 

deposits. Additionally, the half-page document appears to be an enlargement of the 

portion of the May 2019 bank statement’s “CHECKING SUMMARY.” And the 

enlargement makes clear that it is “PAGE: 1 of 2,” though no page 2 was attached to 

the half-page document. Defendants do not contend that they objected on the 

ground of optional completeness or that they requested to have Spears admit the 
13

complete document, nor would we be able to confirm any such objection due to the 

lack of any transcript from the arbitration hearing. Moreover, the arbitrator’s final 

award reflects that the arbitrator considered Defendants’ arguments related to the 

bank statements:

Were Payments Made That Were Not Properly Credited?

[Defendants] argued that $145,393.[2]0 in payments were made to 

[Spears] for which [Defendants] did not receive proper credit. On this 

issue, the testimony varied widely at final hearing. [Defendants] testified 

to a communication with [Spears’s] former bank that indicated receipt of 

a wire payment from [Defendants’] bank, although no specific payment 

amount was confirmed with the bank. [Defendants] introduced

evidence [that] they allege documents transfers from [Defendants] to 

[Spears’s] former bank. [Spears] argues that this contention was only

made for the first time a few weeks prior to final hearing, a time that is 

long after the commencement of the dispute. [Defendants] argued that 

the copies of bank records furnished by [Spears] appeared to be altered 

and were suspicious. [Spears] argued that the copies of the bank records 

were true and correct when compared to originals. [Defendants] argued that

certain information on [Spears’s] bank records indicated receipt of payments while 

[Spears] gave alternative explanations for that information.

[Defendants] made suggestions about how to resolve these 

disputed facts. Although clarity would be welcome regarding whether 

alleged payments were or were not actually made and received, the 

Arbitrator was not convinced that [Defendants’] suggestions would 

actually resolve the issue quickly or with certainty. The Arbitrator does 

not want to create a windfall for one party or the other. However, this

dispute is approaching two years old and if the Project accounting is still 

uncertain at this point, that is one of the matters that the Arbitrator will 

have to decide based on the information furnished by the Parties at final 

hearing.

Weighing all of the communications, information[,] and actions of 

the Parties, the Arbitrator concludes that the alleged payments in the 

amount of $145,393.[2]0 should not be credited against the balance 
14

claimed by [Spears] or awarded under the partial summary judgment.[8]

[Emphasis added.]

Based on the arbitrator’s summary of the proceedings, he had evidence from 

Defendants showing the wire transfers that they had made to Spears’s bank, as well as 

testimony that “varied widely.” Indeed, the sentence that we have italicized in the 

quote from the final award highlights that Defendants raised the issue before the 

arbitrator that they now claimed was concealed—“certain information on [Spears’s] 

bank records indicated receipt of payments.” This statement suggests that 

Defendants both knew of and litigated the issue with the arbitrator that is the basis 

for their vacatur ground of fraud.

The arbitrator, as the factfinder, was entitled to make credibility determinations 

and to decide which testimony to believe. See Ouzenne v. Haynes, No. 01-10-00112-CV, 

2012 WL 1249420, at *2 (Tex. App.—Houston [1st Dist.] Apr. 12, 2012, pet. denied)

(mem. op. on reh’g) (citing Xtria L.L.C. v. Int’l Ins. Alliance Inc., 286 S.W.3d 583, 597 

(Tex. App.—Texarkana 2009, pet. denied)). As the Dallas Court of Appeals explained 

in a similar case,

To the extent appellees assert [that] the arbitrator struggled to follow the 

accounting and was “left searching” for the truth, we cannot agree. 

First, as previously stated, we do not have a record of the arbitration 

hearing and must presume the evidence adequately supports the award. 

Second, the arbitration award states that the arbitrator’s facts and

8

Spears attached as an exhibit to its motion to confirm the arbitration award its 

motion for partial summary judgment on its breach of contract and Prompt Payment 

Act claims as to liability only. The record includes an order from the arbitrator 

granting the partial summary judgment.
15

conclusions were “established by the evidence to be true and necessary

to the Award” based on the parties’ offers of proof, evidence submitted, 

and counsels’ arguments. The arbitrator made credibility determinations 

when the parties’ positions differed. As such, despite any questions or 

concerns regarding the accounting, the arbitrator ultimately considered

the evidence, made credibility determinations, and found in favor of 

appellants.

Alia Realty, 2021 WL 4316119, at *4 (citation omitted).

Here, the arbitrator’s statement suggests that he considered the very issue that 

Defendants now rely on to vacate the award. They bring us no record to undermine 

the view that the arbitrator simply resolved the payment issue adversely to 

Defendants’ contention that payment was made. Thus, it appears that Defendants are 

using the motion to vacate not in reality to raise a fraud claim but in an effort to end 

run their inability to challenge an adverse ruling by the arbitrator.

Nor do Defendants explain why the arbitrator erred by resolving an issue so 

central to their controversy—documenting what payments were made—that was left 

uncertain two years into the controversy. What payments Spears’s bank records 

reflected that it had received would seem to be an obvious source of evidence on the 

question. And with no sufficient record to challenge his action, Defendants fail to

explain why the arbitrator acted improperly by proceeding to resolve the dispute that 

had been pending for two years when he noted the accounting of what payments had 

been made remained uncertain and that it was unclear that what the Defendants 

proposed would clarify the record. Again, the Defendants appear to simply want to 

relitigate an issue the arbitrator considered but resolved adversely to them.
16

Moreover, to vacate an arbitration ruling because of fraud, the movant must 

establish (1) fraud by clear and convincing evidence, (2) the fraud must not have been 

discoverable upon the exercise of due diligence prior to or during the arbitration, and 

(3) the person seeking to vacate the award must demonstrate that the fraud materially 

related to an issue in the arbitration. Las Palmas Med. Ctr. v. Moore, 349 S.W.3d 57, 67 

(Tex. App.—El Paso 2010, pet. denied). Here, Defendants failed to establish by clear 

and convincing evidence that the alleged fraud was not discoverable prior to the final 

arbitration as they raised it as a ground to postpone the final hearing and raised it

again at the final hearing. See Petrobras Am., Inc. v. Astra Oil Trading NV, No. 01-11-

00073-CV, 2012 WL 1068311, at *19 (Tex. App.—Houston [1st Dist.] Mar. 29, 2012, 

no pet.) (mem. op.) (stating that “[r]egardless of the propriety of these allegations, 

[appellant] made no showing that the fraud was not discoverable on the exercise of 

due diligence before or during arbitration” and that “[t]o the contrary, documents 

submitted by [appellee] in response to the vacatur motion show that, before the 

arbitration, [appellant] was aware that the funds had been wire transferred”); Good 

Times Stores, Inc. v. Macias, 355 S.W.3d 240, 245 (Tex. App.—El Paso 2011, pet. denied) 

(“[Appellee] has not shown that [appellant’s] conduct was not discoverable by due 

diligence during the arbitration hearing as it was an issue addressed by the parties 

during the arbitration proceedings.”); Las Palmas Med. Ctr., 349 S.W.3d at 68 (holding 

that appellees failed to establish by clear and convincing evidence that the alleged 

fraud by nondisclosure was not discoverable prior to or during the arbitration where 
17

the record showed that they had discovered the information prior to the final 

arbitration hearing). And despite Defendants’ discovery of the alleged fraud prior to 

the final hearing, Defendants failed to request that a transcript be made of the final 

hearing. Defendants took that risk and now “must fall casualty to the requirements 

for full judicial review.” See Nafta Traders, 339 S.W.3d at 101.

We must indulge all reasonable presumptions in favor of the award, and in the 

absence of any record of the final arbitration hearing—much less a sufficient 

record—we presume that the evidence supports the award. See id. at 102; Alia Realty, 

2021 WL 4316119, at *4; Howerton, 2017 WL 710631, at *3; cf. ZTE Corp. v. Universal

Tel. Exch., Inc., No. 05-17-00781-CV, 2018 WL 6039694, at *5–6 (Tex. App.—Dallas 

Nov. 19, 2018, pet. denied) (mem. op.) (“Where, as here, there is no transcription or 

record of the arbitration hearing, [appellee] cannot establish the arbitration award was

procured by [undue means]” when appellee alleged that appellant had intentionally

withheld or destroyed information pertaining to the transactions involved in the 

arbitration).

2. Remaining Vacatur Grounds

Defendants and Intervenor argue that we should uphold the order vacating the 

arbitration award because Spears did not challenge the merits of the vacatur grounds

and therefore waived them. We disagree. Spears’s argument, which is grounded on

the lack of a record from the final arbitration hearing and the continuance hearing,

undermines all of the vacatur grounds that Defendants raised in their motion to 
18

vacate, including that the arbitrator refused to postpone the final hearing after a 

showing of sufficient cause and that the arbitrator refused to hear material evidence. 

We discuss each of these below.

 a. Refusal to Postpone the Final Hearing

In addition to fraud, Defendants argued that the arbitration award should be 

vacated because the arbitrator refused to postpone the final hearing after a showing of 

sufficient cause. The record, however, does not contain any motion or affidavit to 

support Defendants’ request for a continuance.9 This court has previously 

summarized the standard for granting a continuance as follows:

A trial court may grant a continuance only upon “sufficient cause 

supported by affidavit, or by consent of the parties, or by operation of 

law.” Tex. R. Civ. P. 251; see also Tex. R. Civ. P. 252. [Appellant’s]

postponement requests were not verified or supported by affidavit; thus, 

we may presume that the arbitrator did not abuse his discretion by 

denying his requests. See Cheng Copeland, PLLC v. Chenevert, No. 01-15-

01076-CV, 2016 WL 3222936, at *4 (Tex. App.—Houston [1st Dist.] 

June 9, 2016, no pet.) (mem. op.).

9

The only documents in the record pertaining to the continuance of the 

arbitration proceeding are as follows:

(1) an email dated November 4, 2021, from Defendants’ counsel to the 

American Arbitration Association and to Spears’s counsel requesting an 

emergency conference that same day or the next day with the arbitrator to seek 

a continuance of the final hearing that was scheduled for the following week; 

and

(2) a November 4, 2021 “Order On Motion For Continuance,” which states 

that “[t]he Parties conducted an oral argument call on November 4, 2021, to 

consider a [m]otion for [c]ontinuance” and that after considering the oral 

arguments of counsel, the arbitrator denied the motion.
19

Howerton, 2017 WL 710631, at *4. Because the record before us lacks a motion for 

continuance that complies with Rule 251 and any transcription of the hearing on the 

request for a continuance, we may presume that the arbitrator did not abuse his 

discretion by denying Defendants’ request. See Tex. R. Civ. P. 251; Howerton, 2017 

WL 710631, at *4. 

 b. Refusal to Hear Material Evidence

As their final vacatur ground, Defendants argued that the arbitrator refused to 

hear material evidence and denied Defendants the opportunity to present material 

evidence. We are at a loss for how Defendants expect us to review this ground 

without a record of the arbitration hearing. As the Dallas Court of Appeals stated in 

ZTE Corp., “Again, with no record of the arbitration hearing proceedings before us, 

we do not know what evidence [appellee] presented to the arbitrator nor can we 

review the arbitrator’s conduct in connection with this complaint [that the arbitrator 

refused to consider relevant and material evidence].” 2018 WL 6039694, at *6. Thus, 

we must presume that the arbitration award is correct.

C. Outcome

Because none of the vacatur grounds alleged by Defendants are supported by a 

record from the arbitration proceeding or the record that we have before us,10 the trial 

10Based on our holding, we need not address Defendants’ alternative argument 

contending that there is a miscalculation in the award due to the alleged “double 

recovery” caused by the arbitrator’s not subtracting from the award the Pay App 5 
20

court was required to confirm the arbitration award. See Tex. Civ. Prac. & Rem. Code 

Ann. § 171.087; Las Palmas Med. Ctr., 349 S.W.3d at 73. We therefore conclude that 

the trial court erred by vacating, rather than confirming, the arbitration award. 

Accordingly, we sustain Spears’s sole issue.

IV. Conclusion

Having sustained Spears’s sole issue, we reverse the trial court’s July 29, 2022 

order granting Defendants’ motion to vacate the arbitration award and denying 

Spears’s motion to confirm, and we render judgment confirming the final arbitration 

award issued on January 5, 2022.

/s/ Dabney Bassel

Dabney Bassel

Justice

Delivered: February 9, 2023

and 7 payments totaling $145,393.20 and seeking a rendition of a corrected award or a

remand to have the trial court recalculate the damages. See Tex. R. App. P. 47.1.