## In the Court of Appeals Second Appellat e District of Tex as at Fort Worth

___________________________ No. 02

- 22

- 00337

- CV

_

__________________________

On Appeal from the 348th Distri ct Court Tarrant County, Texas Tri al Court No. 348

- 314885

- 20

Be fore Kerr, Basse l, and Womack, JJ

. Memorandum Opinion by Justice Bassel 

### S PEARS 

### C ONSTRUCTION 

### M ANAGEMENT 

### , LLC , Appellant

V



### . P HYSICAL 

### T HERAP Y 

### D YNAMICS 

### , PLLC ; JRAD I NVESTMENTS 

### , LLC ; AND 

### F IRST 

### G UARANTY 

### B ANK 

### , Appellees2 MEMORANDUM OPINION
I. Intro duction
T his is an a ppeal from an or d er granting a motion to vacate an arbitration
award an d denying a motion to confirm the a ward

. In a single i ssue, Appellant Spear s Construction Management, LLC argues that the trial court erred by grantin g the motion to vacate filed by Appellees Physical Therapy Dynamics , PLLC and JRAD Investments, LLC ( jointly, Defendants) 1 because “ no comp lete record exists or was presented of the arbitration

. ” Becaus e Defendants failed to request that a transcript
be made of the final arbitration hearing and the continuance hearing and b ecause the
record contains no moti on for continuance , Defendants have failed to bring forth a sufficient record to vacate the arbitration award on the three grounds that they raised
in th e tri al court

. In the absence of a record of the challenged proceedi ngs, t he trial

court therefore err ed b y vacating, rather than con firm ing , the ar bitration award.
A ccordingly , we reverse the trial court ’ s July 29, 2022 order granting Defendants ’

1 A ppellee First Guaran ty Bank interv en e d in the suit after the arbitrat or i ssued the final arbitration award and cla imed to have a senior lien o n D efendant s ’ property

— allegedly the same property that “ Spears ha [d] asked that the [trial] [c] ourt [ t o] permit it to foreclose on ” i n satisfaction o f the arbitration award. Al though Spears filed a motion to strike th e petition in intervention, n o order deci ding that motion appears in the appel late record ; the propriety of th e intervention is th erefore not before us

. And so f or purpos es of this opi ni o n, w e refer to First Guaranty Bank as Intervenor and not e that Intervenor “ writes se parately only to supplement the arguments [ made by Defendants] that su ppo rt this [c] ourt ’ s affirming the trial judge ’ s deci sion to vacate the arbitra tion a ward at issue. ”3 mo tion to vacat e the arbitratio n award and denying Spears ’ s motion to confi rm, and we render judgment confirm ing the final arbitration award iss ued on January 5, 2022. II. Background
O n or about August 23, 2018, Spears and Defendants entered into an AIA
Doc ument A 10 1

- 2017 Standard Form of Agreement Between Owner and Contractor ( the Contract ) for the completion o f the Physical Therapy Dynamics New Professional Facility (the Project) in Crowley

. Pursuant to the Contract, Spears provided constructio n management and general contracting services to the Project for
Defendan ts. The Contract contained a dispute resolution clause th at provided that
any c laim subject to, but not resolved by, mediation would be submitted to binding
arbitration. Spears filed suit in J anuary 2020 , alleging cause s of action for brea ch of

contract , violation of the T exas Prompt Payment Act , and vi olation of the Texas
Constructi on Trust Fund Act ; seeking to enforce a lien ; and alternatively seeking to

reco ver damages provided in quantum meruit

. Spears also sought to reco ver its
attorney ’ s fees. Defendants answered and also filed a counterclaim alleg ing various
causes of action. Nearly fourteen mo nths after filing su it, Spears mo ved to compel arbitration. The parties agreed to remov e their respectiv e claims to arbitr ation and to sta y and
abate the case. The trial court signed an agreed order, ordering that Spears and4 Defe ndants “ and all of their claims be compelled jointly to one mandatory binding
arbitration in accordance with the Federal Arbitration Act an d Texas law .” 2 No transcript fro m the arbitration appears in the appellate record; instead, t he
next document in the record is a motion dated February 2022 filed by S p ears asking
the trial court to confirm the arbitration award. In the motion to confir m , Spears

states that it initiated an arbitration in April 2021 and that

t he 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 entiret y . . . . Defend ants filed a motion to vacate or correct the arb itration award and a
respon s e to Spears ’s motion for entry of judgment

. Defendants a rgued that if the
arbitration a ward were confirmed, Spears would obtain a double recovery of $145,393.20 3 t hat had been previously paid

. Defendants raised the following vacatur

2 A lthough the trial court did not ma ke a f inding as to whether t h e arbitration was govern ed b y the Federal Ar bi tration Act or the Texas Ge ne ral Arbitratio n Act , the parties seem to agree that the T G AA governs. Moreove r, “ [b] ecause the subs tantive princi pl e s appli c able to the analysis i n t his appeal and the available grounds to re view an arbitration award are t he same under both the FAA and the TGAA, we may find guidance in court decisions arising under either act. ” Ho werton v. Wood , No. 02

- 15

- 00327

- CV, 20 1 7 WL 71 0 631, at *2 (Tex. App. —F or t Worth Feb. 23, 2017, no pet.) (mem. op.)

.
3 Defendants explained the am ount as follows: Spears claimed that two allegedly unpaid invoices and corresponding Pay Applications [—] Invoice 50/Pay Application 5 for $94,221.00 da te d May 13, 2019 [,] and

. . . I nvo ice 67/Pay Application 7 for $51,172.20 dated5 g r o u n d s : the aw a r d w a s o b t a i n e d b y f raud or other undue m eans; t he arbitrator
refu se d to postpone the final hearing after a showing of sufficient cause; and the
arbitrator both refuse d to hear material evidence and denie d Defendants the opportunity to presen t material evidence.
Aft e r the motion to c onfirm a nd the motion to vacate w ere filed, the parties filed numerous responses and replies. Spears file d a response to Defendants ’ motio n

to vacate , arguing that m onths before the final h earing, Defend ants had al l evidence in
their pos session to assert affirmat ive defenses of payment and waiver but did not do so until four days before the final hearing 4 and that Defendants never filed an a c tual

m otion for c ontinuance but inste ad requested an emergency h earing. Defenda nts filed a reply brief in support of their motion to vacate and later filed a supplement to
their motio n to vacate, attaching bank statements from Spears ’ s bank and emails
ab o ut th e missing payments

. Spears fi led a res ponse to Defendan ts ’ supplement.

September 18, 2019 [

— ] were not paid and sought prompt pay interest on those amounts.

. . . [Defendants ’ ] construction loan le nder, In tervenor
. . . paid t he se i nvoices and c o rre sp o nding Pay Applications. [ References to exhibits omitted.]

4 In April 2022, which was three mon th s after the final arbitration award was signed, Defendants filed their second amend ed answer and affirmative defense s to add the affirma tive d e fense o f pa yme nt. Later that same month, Defendants filed their thir d amended answer and affirmative defe nse s and attached as an exhibit a chart showing paymen ts t o support their affirmative defense o f p ayment.6 Defendants then filed a second reply br ief and supple ment in support of their motion

to vacate the arbitration aw ard.
Intervenor also filed a response to Spears ’ s motion t o conf i rm the ar bitrati on award and incorporate d by reference the arguments made in Defendants’ m otion to

v acate or c orrect the a rbitration a ward and later supplemented its response

. Inte rvenor filed a motion for sanc tions and request fo r attorney ’ s fees to wh i c h Spears responded

. The trial court denied Intervenor ’ s request for sanc tions an d attorn ey ’ s fees. At the hearing on the competing motions, Defendants argued that the b ank statements produced by Spears were different than those t hat Defendants h ad
obtain e d from Spears ’ s bank and w ere 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 brou ght forth

. . . to the arbitrator ” and that “ t here was no

tra nscript and no record in this case of the actual final hearing. ” After hearing the partie s ’ arguments , 5 the trial court granted Defendants ’ motion to vacate , denied Spears ’s motion to con firm the ar b itration award, vacate d the aw ard, and ordered th e

matter to be reheard before the a rbitrator who had mad e the a ward or his successor appointed as specified in the parties’ agreement to arbit rate
. This appeal followed.

5 No evidence was admitted during the hear ing, and the r eco rd from the hearing is only thirty pa ges.7 III. Anal ysis In its sole issue, Spears argu es that the trial court er red by vacating the
arbitrati on award when there was no record of the arbitra tion hearing or the
continuance hear in g . Spears argues that [w ] ithout a record of th e [f ]inal [h] ea ring, [ Def endants ’ ] [v]acatur [g]ro unds are conjecture. With out a record, the trial court has no idea what testimony was presente d to the arbitra tor and what he took into
co ns ideration in render ing the [a]war d , other than what the ar bitra tor him self discu ssed in th e [ a]ward – which address ed [Defendants ’] [ v]acatur [g]round s allegations. Given what is detaile d in the [a]ward, Texas [c]ourt s must presume that . . . the eviden ce was adequate to support the [a] ward. [ Record reference omitted.]
For t he reasons discussed below, we agree. A. Our R eview
This court has previously s et forth the re view we give to arb i tration a wards,
and we borrow from a prior opinion se tting forth that review:
A n arbitration award is conclusive on the parties as to all mat ters of fact and law s ubmit ted to the arbitrator and has the effect of a judgment of a court of last resort. See C VN Grp., Inc. v. Delgado , 95 S.W.3d 234, 238 (Tex. 20 02). A ccordingly, judicial review of an arbitration award is extra ordinarily na rrow, and we may vacate an arbitrat ion award only in very unu sual circumstances. See Oxford Health Plans LLC v. Sutter , [5 69 U.S . 564, 568 ,] 133 S. Ct. 2064, 2068 (2013); Rain CII Carbon, LLC v. C

onocoPhillips Co. , 674 F.3d 469, 472 (5th Cir. 2012); E. Tex. Salt Water Disposa l Co. v. Werline , 307 S.W.3d 267, 271 (Tex. 2010). To protect the strong deference accorded to arbi t ration awards, we review a tri al cou rt’ s ruling to vacate or confirm an ar bitration award de novo based on the entire record. See Denbury On shor e, [ LLC v. Texcal Energy S. Tex., L.P. , 513 S.W.3d 511, 515 (Tex. App.

— Hous ton [14 th 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 presu mption s8 ar e indulged in favor of the award , and the challenging party bears the burden to establish an allowabl e ground for vacatur. See Denbu ry Onshore , [513 S.W .3d at 515] ; Amoco D.T. Co. v. Occidental Petroleum Corp. , 343 S.W.3d 837, 841 (Tex. App.

— Housto n [14th Dist.] 2011, pet. denied). We must focus on the integrity of the process, not the propriety of t he result. S ee Ancor Holdings, LLC v. Peterson, Goldman & Villani, Inc. , 294 S.W.3d 818, 826 (Tex. App.

— Dallas 2009, no pet.).
Howerton , 2017 WL 710 631, at *3

. Additionally, the Texa s Sup reme Court has stated the requirements for the
record and for de monstrating e rror in an arbitration a w ard:
A cou rt must have a sufficient [ 6 ] record of the arbitral proceedings, and complaints must have been prese rve d, all as if the award were a court ju dgment on appeal. For efficiency ’ s sake, arbitration proceedings a re often info rmal; procedural rules a r e relaxed, rules of evidence are not followed, and no record is made. These aspects of arbitra tion, which are ke y to reducing costs and delay in res ol ving disputes, must fall casualty to the requirements f or full judi cial review. The parties can decide f or themsel ves whether the benefits a re worth the additional cost and delay, but the only review to which they can agree is the kind of review courts
co nduct. If error cannot be demonstrated, an award mu st be presumed correct. Naf ta Traders , 339 S.W.3d at 101

– 02 (f ootnotes omitted)

. B. The Grounds for Vacatur Allowable grounds f or va catur include the following: (a) On application o f a party, the court shall vacate an award if:

6 Throughout Spears ’ s brief, it a rgues that the p arty challen ging an arbitration awar d must bring forth a complete record

. The Texas Sup reme Court , however, has stated that a suff icie nt record is n e cessary. See Na fta Traders, Inc. v. Quinn , 339 S.W.3d 84, 101 (Tex. 2011)

. Here, where no re cord was taken, the dis tinction does not come into play , but we no te th e co rrect t erminology and sta ndard s ta ted in Nafta Traders

.9 (1) the award was ob tained by co rruption, fraud, or other undue
mea ns; (2 ) the rights of a party were prejudiced by: (A) evident partiality by an a rbitr ator appoint ed as a neutral arbitrator; (B) co rr uption in an arbitrator; or (C) misconduct or [wil lful ] misbehav ior of an ar bitrator; (3) the arbitrators: (A) exc e eded their powers; (B) refused to postpone the hearing after a showing of
s uffic ient cause for the postponem ent; (C) refused to he ar evidence material to the controversy; or (D) conducted the hea ring, contra ry to Section 171.043, 171.044, 171 .045, 1 7 1.046, or 171.047, in a manner that substantially prejudiced the rights of a party ; or (4) the re was no agreement to arbitrate, th e issue was not adversely determined in a proceeding under Subchapter B, and the party did not participate in the a rbitratio n hearing without raising the objection.
Tex . Civ. Prac. & Rem. C o de Ann. § 171. 088(a) (footnote omitted)

. Of th ese grounds, Defendants chal lenged t he arbi tration award on the grounds that the award was obtained by fr aud or other undue means , that the ar bitrator r efused to postpone the final hearing after a showing of sufficien t cause, and that the arbitra tor ref use d to
hear material evidence. Beca use t he trial court granted Defendants ’ motion to vacate10 w

ithout speci fyin g th e ground(s) on which it based i ts d ecision , we address each of the grounds in turn.
1. Fraud or Other Undue Means
The thru st of Defendants ’ motion to vacate was that Spears had obtai ned th e arbitration award “ by fraud or undue means by wit h holding evidence and falsely
claim ing [th at ] it was not paid amoun ts that it had been paid. ” Defendants argued
that Spears, in support of its claim that Pay App s 5 and 7 ha d not been paid,

“ presented a misleading exhib it

– Arbitration Exhibit 13

– which clearly had its
intended e ffect o f misleadin g the [a]rbitr ator to find that

. . . Pay App 7 had not been paid. ” Defen dants further claimed tha t “ Spears may have produced altered or incomplete bank reco rds in support of its arg uments that it was not paid. ”
Defe ndants later filed a supp lement to the ir m otion to which various monthly

statements from Spe ars ’ s ban k were a ttached in a n attempt to sho w that the exhibit
that Defendants had alleged ly offere d during the final a rbitration hearing ( a half

- page ban k st atement covering 5/1/2019 to 5/31/2019) dif fere d from the bank statement (a two

- page document cove ring that same period of time) that Defenda nts had

su bpoenaed from Spears ’ s bank

. As noted above, no record was made of the arbitration hearing

. W ithout a
record from the final hearing, w e are to pre sume the evidence was adequ ate to support the award

. See Nafta T raders , 339 S.W.3d at 1 02 ; Shah v. Star Anesthesia, P.A. , 580 S.W.3d 260 , 265 (Tex. App.

— S an Antonio 201 9 , no pet.) ( “ When there is no11 t ranscript of the arbi tration hearing , the appellate cou rt will presume the evide nce was adequate to support the award. ” (quoting GJR Mgmt. Holdings L.P. v . Jack Raus, Ltd. , 126 S. W.3d 257, 2 62

– 63 (Tex. App.

— San Antonio 2003, pet. denie d)) ).
Defendants d o not argue that the i r vacatur grounds can be decided wit hout a
record from the ar bitration hearing 7 but conten d instead tha t they “ submitted ample
evidence ” t o the trial court of an altered e xhibit used at arbitration

. They point to
their reply briefing, “ sub poenaed complete bank records, ” a business

- record s a f fi davit for bank records, a document “ showing Spears ’ [s] arbitration exhibit for [the] same bank statement [that had] removed itemized ent ries , ” and the af fidavit of t he attorney who rep resented Defendan ts in the arbitration proceeding , and they quote a p ortion
from the record of the hearing on the motion to v acate during which the allegedly
fraudu lent half

- page bank stat ement was compar ed to the subpoenae d two

- page bank

statement
. Defen dants fa il to point out , however, t hat no evidence was admitted or

att ached to the re co rd of th e hearing on the motion to vacate

. Additiona lly, counsel ’ s

statement s in pos t

- arbi tration briefin g and briefing in this court concer ning what
occurred is not a substitute for a record of those proceedings

. See A lia Realty LLC v. Alha lw ani , No. 05

- 21

- 00265

- CV, 2021 WL 4316119, at *3 (Tex. App.

— Dalla s Sept.

7 See , e.g. , Centex /V estal v. F riendship W. B apt ist Church , 314 S.W.3d 677, 685 (Tex. App.

— Dallas 2010, pet. denied ) ( considering pleadings a nd arbitration agreement in deciding vaca tur ground b ase d on arbit r a tor exceeding his authority) ; Grand Homes 96, L.P. v. Loudermilk , 20 8 S.W. 3d 6 96, 706 (Tex. A p p
. — Fort Worth 2006, pet. denied) (same)

.12 23, 2021, pet. denied ) ( mem. o p.) ; see also Gordon v. Trucking Res. Inc. , No. 05

- 21

- 00746

- CV, 2022 WL 169459 13, at *6 (Tex. App.

— Dallas Nov. 1 5, 2022, no pet. ) (mem. op.) (sta tin g that there was no record of the ar bitration proceedings exc ept th e arbitration award and that although the motion to vacate purported to p rovide t he back ground and procedural histor y of the arbitration, that description did not con st itute a record
of the documents and t he proceedings before the arbitrator, nor was it ev idence that could be considered by the trial court or appellate court)

. F urtherm ore , De fendants may not rely on exh ibits attached to the pleadings before the trial c ou rt, or more specif ica lly their motion to vacate, for evidentiary purposes. See Shah , 58 0 S.W.3d at
26 5

– 6 6 ( de clining to consi der exhibits attac hed to motion to vacate).
Even assuming that the half

- page bank statement was the compla ined

- of
exhibit that wa s admitted during the final arbitration hearing and was discus sed at the vacatur hearing , th at document and the two

- page bank statement li st the same

amounts for “OTHER CREDITS , ” which is the line item wh ere bank wires were posted

. None of t he totals were fabricated

. Inst ead , Defendants did not understand Spears ’ s bank ’ s method of posting wire transfers as other credits inste ad of as deposits

. Additionall y , t he half

- page document appears t o be a n enlarge ment of the portion of the May 2019 b ank stat ement ’s “CH ECKING SUMMAR Y. ” And the enlargement makes clear that it is “PAGE : 1 of 2, ” tho ugh no page 2 was at tached to
the half

- page document

. Defendants do not contend that they object ed on t he ground of option al complete ness or that they re qu es ted to have Spears admit the13 c omp lete document , nor would we be able to confirm any such objection du e to the lack of any transcript from th e a rbitration hearing. Mor eover, the arbitrator ’ s final
award re flect s that the arbitrator considered Defendant s ’ arguments related to the
bank s tat ements : W ere Payments Made That Were Not Properly Credited? [Defend ants ] argued that $145,393. [2] 0 in payme nts were made to [Spears] f or which [Defendants] did not recei ve proper credit. On this issue, the testimony va ri ed widely at final hearing. [ De f endants ] testified to a communication with [Spears ’ s] former bank that indicated receipt of a wire payment fr om [Defendants ’ ] bank, alth ough no specific payment amount was co nfirmed with the bank. [Defendants ] introduced
e vidence [that] they allege doc um e nts transfers from [Defendants ] to [Spears ’ s] former bank. [Spears] ar gues that this contention was only mad e for the first time a few weeks prior to final hearing, a tim e t hat is long after the commencement of the dispu te
. [Defendants ] argued that th e c opies of bank reco rds furnished by [Spears] appeared to be altered and were suspicious. [Spears] argued that the copies of the bank rec ords were true and correct when com par ed to originals. [ Defendants ] argued that cert ai

n information on [Spears ’ s] ba nk records indicated rec eipt of payments while [Spears] g ave alternative e xplanations for that information. [D efendants ] made suggestions about how to resolve these dispute d f acts. Although clarity would be welcome regard in g whether alleged payments wer e o r were not actually made and received, the Arbitrator was not convinced that [Defendants ’ ] s uggestions would actually resolve the issue quickly or with certainty. The Arb itr ator does not want to create a windfall for one p arty or the other. However, t hi s dispute is approaching two years old and if the Project accounting is still uncertain at this point, that is one of the matters that th e Arbitrator will have to decide ba sed on the information furnished by the Parties at f inal hearing. Weighing all o f t he communications, information [,] and actions of the Parties, the Arbit rator concludes that the alleged payme nts in the amount of $145,3 93. [2] 0 should not be credited agains t t he balance14 claimed by [Spears] or awarded und e r t he partial summary judgment. [ 8 ] [ E m phasis added.]
Based on the arbitrator ’ s summary of the proceedings, he had evidence from
Defendants showi ng the wire trans fers that they had made to Spears ’ s bank , as we ll as
testim ony that “ varied widely. ” I ndeed, the sentence that we have ital ic i zed 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 [Spear s ’s] bank records indicated receipt of pay m ent s.” This statement suggests that
Def en d ants both knew of and litigated the issue with the arbitrator that is the basis
for their vacatur ground of fraud.
The arbitr a tor , as the factfinder , was entit l ed to make credibi lity determinations
and to dec i de which testimony to believe

. See Ouzenne v. Haynes , N o. 01

- 10

- 00112

- CV, 2012 WL 1249420, at *2 (Tex. App.

— Houston [1st Dist.] Apr. 1 2, 2012, pet. denied) ( mem. op. on reh ’ g ) (c it ing Xtria L.L.C. v. In t ’ l Ins. Al liance Inc

. , 286 S.W.3d 583, 597 (Te x . App.

— Texarka na 2009, pet. denied) )

. A s the Dal la s Court o f Appe als explained
i n a similar case, To the extent appelle es assert [that] the arbitrator s trugg led to follow the account ing and was “ left s earching ” for th e truth , we cannot agree. F irst, as p reviously stat ed, we do not have a recor d of the ar b itration hearing and must pre sume the evidence adequately supports the a wa rd. Second, the arbitratio n award states that the arbitr a tor ’ s facts and

8 Spears a ttached a s an exhibit to i ts motion to confi rm the arbitration award its motion f or p artial sum mary judg ment o n its breach of contract and Prom pt Pa yment Act claims as to liability only. Th e record inclu des an order from the arbitrator granting the partial summary judgment.15 conclusions were “ established by the evidence to be tru e and necessary to the Award ” based on th e parties ’ o ffers of proof, evidence subm itted,
a nd counsels ’ arguments. The arbitrator made credibility determi nations when the parties ’ posi tions differed. As such, de spite a ny questions or concerns regarding th e accounting, t he arbitrator ultimately c onsidered t h e evidence, made credibility de terminations, and found in favor of appellants. Alia Realty , 2021 WL 4316119, at * 4 (citation omitt ed)

. Here, the arbitrator’s stateme nt suggests that he considered t he ve r y issue that
D efendants now rely on to vacate the a w ard. 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 Defenda nts are

u sing the motio n 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 exp lain why the arbitrator erred by resolv ing an issue so

centr al to their cont r oversy

— doc umenting what payments were made

— that w as left uncertain two years into the controversy. What payment s Spears’ s bank records
reflected that it had received would seem t o be an obvious source of evidence on t he question. A nd with no sufficient r ecord to c hallenge his action, Defendants fail to

e x plain why the arbitrator acted improperly by proceeding to resolve the dispute that had been pending for two years when he note d the accounting of what payment s had
b een made remained uncertain and that i t was uncl ear that what the Defendants proposed w ou l d clarify the record. Again, the Defendants appear to simply want to relitigate an issue the arbitrator considered but resolve d adversely to them.16 Moreover, to vacate an arbit ration rulin g because of fraud, the mov ant must establish (1) fraud by clear a n d convincing evidence, (2 ) the fraud must not have been
discoverable u pon the exercise of due diligence prior to or during the arbitration, and (3) the person se eking to vacate the award must demons t rate that the fraud materially
related to an issue in th e arbitration. Las Palmas Med. Ctr. v . Mo ore , 349 S.W.3d 57, 67 (Tex. App.

— El Paso 2010, pet. denied ). Here, Def endants f ailed to establish by clear
and convinc ing evidence that the alleged fraud w a s no t disc overable prior to the fin al
arbitration as t he y raised i t a s a ground to postpone the fi nal hearing and raised it
aga in 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 [ 1 st 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 no t discove rable on the exercise of
due dili gence before or during arbitration ” and t h at “ [t] o the contrary, documents submitted by [appelle e] in respon se to th e vacatur motion show that , before the arbitration, [appellant] was awar e that the funds ha d been wire tran sferred ” ) ; Good
Times Stores , Inc. v. M acias , 355 S.W.3d 240, 245 ( Tex. Ap p
. — El Paso 2 0 11, pet. denied ) ( “ [ Appellee] has not show n t ha t [appellant ’ s] conduct was not discovera ble by due diligen ce during the arbitration hearing as it was an issue a ddressed by the parties during the arbitration p roceedings. ” ); Las Palmas Med. Ctr. , 349 S.W.3d at 68 (holding that app ellees failed to es ta b li sh by clear and convincing evidence that the alleged fraud by nondiscl osure was not discoverable prior to or duri ng the ar bitration where17 the record showed that the y had discovered the informat i on prior to the final arbitration hearing). And despite De f en dants ’ discovery of the alleged fraud pri or to the fi nal he aring, Defendants fail e d to request that a transcript be made o f the final hearing

. Defendants took t hat risk and now “ must fall casu a lty to the requ irements
f

or full judicial review. ” See N af

t a Traders , 339 S.W.3d at 10 1

. We mus t i ndulg e a ll reasonable p resu mptions in favor of the award , and in the
absence of a n y record of the final arbitration heari ng

— much less a s ufficient

re cor d

— we pre su me that the evidence supports th e award

. See id. a t 1 0 2 ; 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

- C V, 2018 WL 6039694, at * 5

– 6 (Te x . Ap p.

— Dallas Nov. 19, 201 8, pet. denied ) (mem. op. ) ( “ Wh ere, as here, there is no tr an s crip tion or
record of the arbit ration hearing, [appellee] cannot es tablish the arbitration award was
pro cured by [undue means ] ” when appell ee alleged that appellant ha d int entio nally withheld or destroyed information pe rtaining to the transactions invol ve d in the arbitration)

. 2. Remaining Vacatur Grounds
Defendant s an d Intervenor argue that we should uphold the order vacating the
arbitratio n award because Spears did n o t challenge the merits of the vacatur grounds
and therefore w aived them

. We disagree

. Spears ’ s argument , which is gro unded on
the lack of a record from the final arbitration heari n g and the continuance heari n g , undermines all of t he vacatur grounds that Defendants rais ed in the ir motion to18 vacate , including t hat the arbitrator refused to po stpone the final hearing after a showing of sufficie nt cause and that the arbitra tor ref used to hear material evidence.
W e discuss each of these below.

a. Refusal to P ostpon e the Fi nal Hearing
In addition to fraud , Def endants argued that the arbitra ti o n award should be

v acated because the arbitrator r efused to p ostpone the final hearing afte r a showing of
sufficient ca u se . The record , however, does not contain any motion or affidavit to support Defendant s’ request for a continuance. 9 This court has pr eviously
summari ze d the standard fo r granting a continuance as follows:
A tr ial court may grant a contin u an ce only upon “sufficient cause supported by aff idavit, or b y consent of the parties, or by operation of law.” Tex. R. Civ. P. 251; see also Tex. R. Civ. P. 252. [App ellant ’ s] postpon eme nt requests were not verified or suppo rted by affidavit; thus, we m ay presume that the arbitrator did not abuse his discretion b y denying his requests. See Cheng Copela nd, PLLC v. Chenevert , No. 01

- 15

- 01076

- CV, 201 6 W L 3222936, a t *4 ( Tex. App.

— Houston [1s t Dist.] June 9, 2016, no pet.) (mem. op.).

9 The o nl y document s in the record pertaining to the continuance of the
ar bitration proceeding are as follo ws: (1) an email dated November 4, 2021, from Defe ndants ’ co uns e l to the Ameri can Arbitra tion Association and to Spears ’ s counsel requesting an
e mergency conference that same day or the next day wi th the arbitra tor to see k a continuance of the final hearing th at w as scheduled for the follow ing week ; and (2) a Novem ber 4, 2021 “ Order On Motion For Continuance ,” which state s that “[t] he P arties conducted an oral argument call on Novem ber 4, 2021 , to co n sider a [m ]otion for [c]ontinuance ” and that af t er considering the oral arguments of counsel, the arbitrator denied t he m otion.19 Howerton , 2017 WL 71 0 63 1, at *4

. Because the record before us lacks a motion for
continuance that complies with Ru le 251 a nd any transcription of the hearing on the
req ue s t for a continuanc e , we may presume that the arbitrator did not abuse his
di scretion by denying Defendan ts’ request. See Tex. R. C iv. P. 251; Howerton , 2017
WL 71063 1, at *4

. b. Refusal to Hear Material E vidence
As the ir final vacatur g round, Defenda nt s argued that the ar bitrator refu se d to
hear material evidence and denied De fendan ts the opp ortunity to p re sent material
evidence

. We are at a loss for how Defe ndants expect us to review this g rou nd without a record of the arbitration hearing. As the D al l as Cour t of Appeals stated in
Z TE Corp. , “ Again, with no record of the arbitration heari n g pr oceedings before us,

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

rev iew the arbitrator ’ s conduct in connection with this comp la i nt [tha t the arbitr ator refused to consider relevant and material evidence]. ” 2018 WL 6 0 39 694, at *6

. Thus, we must presume that the arbitration award is correct.
C. Outcome
Because none of t he vacatur grounds alleged by Defendants are supported by a

rec ord fro m the arbitr ation proceeding or the record that we ha ve before us, 10 the trial

10 Based on our holding , we need not address Defe ndan ts ’ alternative argument contending that there is a miscalc u lation in the award due to the alleged “ double
r ecovery ” caused by the arbitrator ’ s not subtra cti ng from the award the Pay App 520 cou r t was required to confirm the arbitration awa rd. See Tex. Civ. Prac. & Rem. Code Ann. § 171.087; Las Pa lma s Med. Ctr. , 349 S.W.3d at 7 3. W e therefore conclude tha t

t he tria l court erre d by vacating, rather than confirming, th e arbitration award.
Accord i ng ly, we sustain Spears ’ s sole issue

. IV. C o nclusion Having su stai ned Spears ’ s sole issue, we reverse t he trial court ’ s July 29, 2022 order granting Defendants ’ mo ti o n to va cat e the arb itration award and denying Spears ’ s motio n to confirm, and we render j ud gment confirming the final arbitration
award issued on Januar y 5, 2022. /s/ Dabney Bassel Dabney Bassel Justice
Deliver ed: February 9, 202 3

and 7 pay ments total ing $ 1 45,393.20 a nd seeking a rendition of a co rrected award or a remand to have the tri al court rec alcula t e the d amages . See Tex. R. A pp. P. 47 .1.