NUMBER 13-14-00345-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

COLUMBIA VALLEY

HEALTHCARE SYSTEM, L.P., Appellant,

v.

RODOLFO J. WALSS, M.D., P.A., Appellee.

 

On appeal from the 138th District Court

of Cameron County, Texas.

 

MEMORANDUM OPINION

Before Justices Benavides, Perkes, and Longoria

Memorandum Opinion by Justice Benavides

By five issues, which we will address as one main issue with sub-issues, appellant, 

Columbia Valley Healthcare System, L.P. (“Columbia Valley”) appeals the trial court’s 

judgment vacating its arbitration award. We reverse and remand. 
2

I. BACKGROUND

In early 2011, Valley Regional Medical Center (“Valley Regional”), a subsidiary of 

Columbia Valley, entered into a Recruiting Agreement (“the contract”) with Dr. Alberto 

Aguayo-Orozco (“Aguayo”). Aguayo was to join the practice of Dr. Rodolfo Walss 

(“Walss”) as part of the contract. Both Aguayo and Walss executed agreements with 

Valley Regional agreeing to all parts of the contract. As a part of the contract, any 

controversy or claim between the parties would be settled by mandatory binding 

arbitration. Within the first twelve months of the contract, Columbia Valley found that 

there had been a material breach of the contract by Walss and Aguayo and filed suit 

against them. 

In August 2012, Valley Regional, acting on behalf of Columbia Valley, initiated 

arbitration between the parties. Arbitrator Penny Hobbs was appointed to handle the 

arbitration. In January of 2013, Hobbs issued a scheduling order to the parties, which 

included all deadlines, and set the arbitration for October 9, 2013. On July 5, 2013, 

shortly before the deadline to file dispositive motions, Columbia Valley filed a motion to 

modify the scheduling order. In their motion, Columbia Valley asked for a three-and-ahalf week continuance in order to take the deposition of Walss’s billing manager. The 

motion alleged that the deposition was set for a date shortly after the original motions 

deadline; previous attempts to depose the manager unsuccessful due to motions to quash 

the deposition filed by Walss. Hobbs granted the motion and sent out an amended 

scheduling order to the parties. On August 2, 2013, Columbia Valley filed their motion 

for summary judgment.
3

 Later that month, Walss asked Columbia Valley via e-mail to agree to move the 

arbitration until January of 2014. Columbia Valley agreed to a one-month extension of 

the arbitration hearing to November 2013 if Columbia Valley’s motion for summary 

judgment was denied, but nothing further. Walss did not agree with Columbia Valley’s 

counter-offer and filed a motion to extend the deadlines and continue the arbitration. In 

that motion, Walss did not address the motion for summary judgment filed by Columbia 

Valley. Hobbs denied the motion for continuance filed by Walss, stating that she felt the 

motion “contains factual inaccuracies and fails to fulfill the requirements of Texas Rule of 

Civil Procedure 252 or to otherwise justify the need for an extension of deadlines or for a 

continuance.” The arbitration moved forward as scheduled, and neither party asked for 

a hearing to present oral arguments. Walss never filed a response to Columbia Valley’s 

motion for summary judgment. Hobbs reviewed the documents submitted to her, found 

in favor of Columbia Valley, granted Columbia Valley’s motion for summary judgment, 

and entered her second amended arbitration award1 on October 30, 2013. Hobbs 

found both Walss and Aguayo were responsible for the breach of the contract and jointly 

and severally liable for damages in the amount of one hundred thirty-eight thousand nine 

hundred thirty-five dollars and nineteen cents ($138, 935.19) in favor of Columbia Valley. 

Columbia Valley filed its original petition in the trial court shortly after the arbitration 

award was determined, and asked the trial court to grant their motion for summary 

judgment and confirm the arbitration award. Walss filed a motion to vacate the 

arbitration award alleging that the arbitrator was biased as evidenced by her denial of his 

 

1 Hobbs’s First Arbitration Award was not a part of the record submitted to this Court. The Second 

Arbitration Award would appear to supersede any prior awards.
4

motion for continuance. After one day of oral hearing and another day meeting in 

chambers with the trial court,2the trial court granted the motion to vacate the arbitration 

award stating that “it appears that good cause exists.”3 This appeal followed. 

II. ARBITRATION AWARD VACATED

By five issues, Columbia Valley argues that: (1) the trial court erred in not 

confirming the award; (2) the arbitrator did not abuse her discretion by denying Walss’s 

motion for continuance; (3) there was no “evident partiality” by the arbitrator; (4) the 

arbitrator was not “guilty of misconduct in refusing to postpone the hearing upon sufficient 

cause”; and (5) there was no substantive unconscionability. However, issues two 

through five appear to be sub-issues of issue one and we will address them as such. 

A. Standard of Review

“Review of a trial court’s decision as to vacatur or confirmation of an arbitration 

award is de novo and the appellate court reviews the entire record.” In re Guardianship 

of Cantu de Villarreal, 330 S.W.3d 11, 17 (Tex. App.—Corpus Christi 2010, no pet.); see 

In re Chestnut Energy Partners, Inc., 300 S.W.3d 386, 397 (Tex. App.—Dallas 2009, pet. 

denied). “However, all reasonable presumptions are indulged in favor of the award, and 

none against it.” Id. “Because Texas law favors arbitration, judicial review of an 

arbitration award is extraordinarily narrow.” In re Cantu, 330 S.W.3d at 17; see E. Tex. 

 

2

 Information provided from the trial court’s court reporter is that these motions were addressed 

on two different days before the trial court. However, the second day consisted of an oral hearing and an 

in-chambers meeting between the parties and trial judge. The oral hearing on the second day was not 

recorded or transcribed by the court reporter and unavailable for this Court to review.

3

 The trial court also took Columbia Valley’s motion for summary judgment to confirm the 

arbitration award under advisement. However, there was never a ruling by the trial court handed down on 

the motion for summary judgment. 
5

Saltwater Disposal Co. v. Werline, 307 S.W.3d 267, 271 (Tex. 2010). “We give strong 

deference to the arbitrator with respect to issues properly left to the arbitrator’s resolution.” 

Age Industries, Ltd. v. Edwards, 318 S.W.3d 461, 462 (Tex. App.—El Paso 2010, pet. 

dism’d). “Subjecting arbitration awards to judicial review adds expense and delay, 

thereby diminishing the benefits of arbitration as an efficient, economical system for 

resolving disputes.” In re Cantu, 330 S.W.3d at 17 (quoting CVN Group, Inc. v. Delgado, 

95 S.W.3d 234, 238 (Tex. 2002)). 

B. Applicable Law and Discussion

The Texas Supreme Court has “long held that ‘an award of arbitrators upon 

matters submitted to them is given the same effect as the judgment of a court of last 

resort. All reasonable presumptions are indulged in favor of the award, and none against 

it.’” In re Cantu, 330 S.W.3d at 18 (quoting CVN Group, 95 S.W.3d at 238). Arbitration 

awards can only be vacated under very limited circumstances. Id. “When a nonprevailing party seeks to vacate an arbitration award, it bears the burden in the trial court 

of bringing forth a complete record that establishes its basis for vacating the award.” In 

re Cantu, 330 S.W.3d at 24; see In re Chestnut, 300 S.W.3d at 401. “When there is no 

transcript of the arbitration hearing, as here, the appellate court will presume the evidence 

was adequate to support the award.”4 Id. 

The “Texas statutes governing arbitration of disputes, commonly referred to as the 

[Texas Arbitration Act or] TAA, are found in chapter 171 of the Texas Civil Practice and 

 

4

 According to the arbitrator’s second amended arbitration award, “the parties were offered the 

opportunity for a hearing for oral argument on Claimant’s Motion for Summary Judgment. None of the 

parties requested a hearing.” The arbitrator based her decision of the motions filed and the evidence 

attached to those motions by the parties. 
6

Remedies Code.” In re Chestnut, 300 S.W.3d at 394; see TEX. CIV. PRAC. & REM. CODE 

ANN. § 171.001–.098 (West, Westlaw through 2015 R.S.). The federal statutes 

governing arbitration are commonly referred to as the Federal Arbitration Act (“FAA”) and 

are found in Title 9 of the United States Code. See 9 U.S.C.A. § 2-16 (West, Westlaw 

through P.L. 114-61). The arbitration clause found in the contract between Columbia 

Valley and Walss states:

Any controversy or claim arising out of or related to the Recruiting 

Agreement of this Addenda or any breach thereof shall be settled by 

mandatory binding arbitration in accordance with the rules and procedures 

of alternative dispute resolution and arbitration established by the 

Alternative Dispute Resolution Service of the American Health Lawyers 

(“AHLA”) 5 or, in the sole discretion of Hospital, by the Commercial 

Arbitration Rules of the American Arbitration Association (“AAA”).

Both parties agree in their briefs that there is no conflict between the requirements for 

vacatur under the TAA and the FAA, and that both the TAA and the FAA allow for vacatur 

of an arbitration award if there was arbitrator misconduct. 

1. TAA (Texas Arbitration Act)

By its first sub-issue, Columbia Valley argues that Hobbs did not abuse her 

discretion in denying Walss’s motion for continuance. Hobbs denied Walss’s motion for 

continuance because it was her opinion that “it contains factual inaccuracies and fails to 

fulfill the requirements of Texas Rule of Civil Procedure 252 or to otherwise justify the 

need for an extension of deadlines of for a continuance.” The wording used in Hobbs’s 

denial refers to analysis under the TAA. 

The civil practice and remedies code “dictates that, unless grounds are offered for 

 

5

 The AHLA has their own set of rules and procedures, in addition to the FAA and TAA, that must 

be followed when one of their arbitrators are handling a dispute between health care parties. 
7

vacating, modifying, or correcting an award under other specified sections of the code, 

the court, on application of a party, shall confirm the award.” In re Cantu, 330 S.W.3d at 

18; see TEX. CIV. PRAC. & REM. CODE ANN. § 171.087. The grounds for vacating an 

award under the code are set out in section 171.088(a), which states:

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

(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;

(C) misconduct or willful misbehavior of an arbitrator;

(3) the arbitrators:

(A) exceeded their powers;

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

cause for the postponement;

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

(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 the 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 an objection.

TEX. CIV. PRAC. & REM. CODE ANN. § 171.088(a) (emphasis added).

To determine what would constitute “sufficient cause for postponement,. . .we may 

examine the grounds a court would find sufficient to support a motion for continuance in 

a trial court.” Id.; Hogget v. Zimmerman, 63 S.W.3d 807, 811 (Tex. App.—Houston [14th 
8

Dist.] 2001, no pet.). A motion for continuance cannot be granted “except for sufficient 

cause supported by affidavit, or by consent of the parties, or by operation of law.” In re 

Cantu, 330 S.W.3d at 26 (quoting TEX. R. CIV. P. 251). “When a continuance is sought 

because of the unavailability of a party, we examine Texas Rule of Civil Procedure 252.” 

Id. at 27. Rule 252 states:

If the ground of such application be the want of testimony, the party applying 

therefor shall make affidavit that such testimony is material, showing the 

materiality thereof, and that he has used due diligence to procure such 

testimony, stating such diligence, and the cause of failure, if known; that 

such testimony cannot be procured from any other source; and, if it be for 

the absence of a witness, he shall state the name and residence of the 

witness, and what he expects to prove by him; and also state that the 

continuance is not sought for delay only, but that justice may be done; 

provided that, on a first application for continuance, it shall not be necessary 

to show that the absent testimony cannot be procured from any other 

source. 

Id. (quoting TEX. R. CIV. P. 252); see Duerr v. Brown, 262 S.W.3d 63, 78–79 (Tex. App.—

Houston [14th Dist.] 2008, no pet.). 

“Factors to consider when deciding whether a trial court abused its discretion in 

denying a continuance include the length of time the case has been on file; the materiality 

and purpose of the discovery sought; and whether the party seeking the continuance

exercised due diligence to obtain the requested discovery.” Id. at 69; see Joe v. Two 

Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). Additionally, courts can 

consider other factors, such as “when a motion for continuance is based upon the 

absence of a party, there must be a showing of diligence in attempting to obtain the 

required testimony.” Humphrey v. Ahlschlager, 778 S.W.2d 480, 483 (Tex. App.—

Dallas 1989, no pet.); see Gold Rush, Inc. v. Wayne, No. 13-05-00497-CV, 2006 WL 

2076725, at *2 (Tex. App.—Corpus Christi Oct. 3, 2006, no pet.) (mem. op.). It is “well 
9

established that the failure of a litigant to diligently utilize the rules of civil procedure for 

discovery purposes will not authorize the granting of a continuance.” Id. (quoting State 

v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1998)). 

Walss’s continuance needed to specifically list which persons he needed to 

depose, why their testimony would be material to his case, what due diligence he had 

used to procure this testimony albeit unsuccessfully, and if it was related to a person’s 

absence, that person’s name and residence. See TEX. R. CIV. P. 252. His motion for 

continuance only listed by name his co-defendant, Aguayo, but not the representatives 

from Columbia Valley that Walss wanted to depose. In Walss’s motion for continuance, 

he stated:

No discovery from co-defendant Aguayo has been exchanged between the 

parties. Plaintiff has not taken the deposition of co-defendant Aguayo. In 

contrast, Defendant Walss has submitted relevant discovery and has also 

been deposed in this matter by Plaintiff.

Defendant Walss has not had the opportunity to depose Plaintiff’s corporate 

or accounting representatives or the financial expert designated by Plaintiff.

Neither Plaintiff nor Defendant Aguayo have requested Defendant Aguayo 

be severed or have a separate arbitration. As such, Defendant Aguayo is 

an essential part of Plaintiff’s claims and Defendant Walss’s defense.

Defendant Walss, is requesting a continuane [sic] to obtain discovery from 

Dr. Aguayo and to take the deposition of Plaintiff’s accounting expert, as 

well as other key witnesses, which after conducted, may prompt Defendant 

Walss to file counterclaims against Plaintiff and/or Defendant Aguayo. 

These tasks cannot be accomplished in accordance with the current 

deadlines and setting for arbitration. 

In contrast, the motion filed by Columbia Valley asked for an extension of a 

deadline to file motions. It stated:

2. The Hospital has been attempting to depose Ms. Cynthia Ibarra, who 

was previously the billing manager for Rodolfo J. Walss, M.D., P.A. and that 

deposition has been able to be scheduled to be completed in advance of 
10

the July 9, 2013 deadline for dispositive motions.

3. The Hospital did attempt to obtain this information through a request 

to depose a corporate representative of Rodolfo J. Walss, M.D., P.A. who 

could testify regarding Dr. Aguayo’s gross cash receipts, his billings and 

collections on a monthly basis, the monthly reports regarding Dr. Aguayo’s 

gross case receipts, the Practice’s billing process, and the dates on which 

Dr. Aguayo was credentialed with Medicaid, Medicare, and various 

insurance companies. Dr. Walss was designated as that corporate 

representative, but was unable to supply any information regarding any of 

those categories as he stated that the only people that would have that 

knowledge were Dr. Aguayo and Ms. Ibarra, who no longer worked for the 

Practice. . . .

4. Ms. Ibarra’s deposition is currently scheduled for July 12, 2013, but 

Rodolfo J. Walss, M.D., P.A. has filed a motion to quash. A deadline of 

August 2, 2013 for dispositive motions should be workable for all parties 

with deadlines for responding and the hearing of motions in accordance with 

the Texas Rules of Civil Procedure.

Although Columbia Valley’s motion did not have a signed verification attached, it 

was a thorough motion in accordance with Rule 252. See TEX. R. CIV. P. 252. In 

contrast, Walss’s motion had a verified affidavit attached, but did not explain why 

discovery had not been conducted, what problems had been encountered, and what date 

was being requested for the resetting. In previous communication between the two 

parties, Columbia Valley had been amenable to a one month extension on the arbitration 

hearing date if their motion for summary judgment was denied by Hobbs. Walss 

requested at least a three-month extension from Columbia Valley, but Columbia Valley 

was not willing to agree to that length of time. 

In reviewing Hobbs’s decision to deny Walss’s continuance under the standard 

required in a motion for continuance before the trial court, we conclude that it was not an 

abuse of discretion for Hobbs to deny Walss’s continuance. Walss’s motion did not 

specifically address all persons he needed to depose, what they would testify to, why the 
11

depositions had not occurred prior to the filing of the motion, or if there was depositions 

scheduled in the near future. Additionally, Walss did not explain how these depositions 

would change the outcome of his case against Columbia Valley. 

Although the arbitrator had set the deadline at least seven months prior, and the 

arbitration itself had been pending for over a year, there was no evidence submitted to 

the arbitrator or trial court showing that Walss had attempted to set up these depositions 

without success. In an e-mail submitted by both parties, Walss, in response to Columbia 

Valley’s deposition requests for his billing representative, asked where certain hospital 

representatives, as well as Aguayo, would be deposed, but did not attach any evidence 

of his request for dates to Columbia Valley to carry out the depositions he requested in 

his motion. In his motion for continuance, Walss claims that Columbia Valley has not 

deposed the co-defendant, Aguayo, and therefore Walss is entitled to a continuance, but 

Columbia Valley never scheduled a deposition with Aguayo. Walss had the ability under 

the discovery process to request this deposition, but appears to not have done so. 

Because his motion for continuance was lacking important required factual information 

and Walss did not show that the information missing was not due to his lack of diligence, 

Hobbs was within her discretion to deny Walss’s continuance under the TAA.

2. FAA (Federal Arbitration Act)

By its third sub-issue, Columbia Valley argues that Hobbs was not guilty of any 

misconduct in refusing to postpone the arbitration hearing. The Federal Arbitration Act 

also “allows federal courts to vacate an arbitration award ‘where the arbitrators were guilty 

of misconduct in refusing to postpone the hearing, upon sufficient cause shown. . . or of 

any other misbehavior by which the rights of any party have been prejudiced.’” Laws v. 
12

Morgan Stanley Dean Witter, 452 F.3d 398, 399 (5th Cir. 2006) (quoting 9 U.S.C. § 

10(a)(3) (West, Westlaw through P.L. 114-61)). Specifically section 10 of the FAA 

states:

(a) In any of the following cases in the United States court in and for the 

district wherein the award was made may make an order vacating the 

award upon the application of any party to the arbitration—

(1) where the award was procured by corruption, fraud, or undue 

means;

(2) where there was evident partiality or corruption in the 

arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in refusing to 

postpone the hearing, upon sufficient cause shown, or in refusing to 

hear evidence pertinent and material to the controversy; or of any 

other misbehavior by which the rights of any party have been 

prejudiced; or

(4) where the arbitrators exceeded their powers, or so imperfectly 

executed them that a mutual, final, and definite award upon the 

subject matter submitted was not made. 

9 U.S.C. § 10(a)(1-4) (West, Westlaw through P.L. 114-61) (emphasis added). 

“To constitute misconduct requiring vacation of an award, an error in the 

arbitrator’s determination must be one that is not simply an error of law, but which so 

affects the rights of a party that it may be said that he was deprived of a fair hearing.” Id. 

(quoting El Dorado Sch. Dist. No. 15 v. Continental Cas. Co., 247 F.3d 843, 848 (8th Cir. 

2001)). However, “procedural matters relating to the confirmation of arbitration awards 

in Texas courts are governed by Texas law even if the FAA supplies the substantive rules 

of decision.” In re Chestnut, 330 S.W.3d at 395. 

In Laws, similar to the present case, Laws requested and was denied a 

continuance by an arbitration panel. 452 F.3d at 400. In that case, Laws did not show 
13

what prejudice he suffered by this denial, or what documents were material to his case or 

how more time would have enabled him to present his case differently. Id. Additionally, 

Laws waited until very close to the deadline in order to initiate the discovery process. Id. 

There, the Fifth Circuit Court of Appeals held the arbitration panel did not engage in 

misconduct by denying the appeal. Id. at 398. 

Similarly here, although Walss had been participating in the discovery process 

through e-mail communications and documents exchanged between the parties, the emails provided to the trial court showed that Columbia Valley was the party requesting 

dates and information from Walss, with follow-up reminders to Walss when information 

was not provided. Walss did request information from Columbia Valley about the 

persons he wanted to depose, but there was never any documentation that deposition 

dates were requested by Walss or those persons listed in Walss’s motion for continuance 

were unavailable.

Walss does not show how the denial of his motion for continuance “so affects the 

rights of a party that it may be said that he was deprived of a fair hearing.” Id. Although 

Walss claims in his motions to the trial court that his ‘”discovery efforts were hindered” by 

Columbia Valley, he does not explain further or provide evidence of this assertion, nor did 

he address any issues with Columbia Valley in front of Hobbs. Walss also claims he 

was prevented from presenting elements of his defense by the denial of his continuance 

by Hobbs, but does not explain which elements and how the testimony from the witnesses 

he wanted to depose would have supported those elements. Similar to Walss’s issue 

under the TAA, Walss does not show that Hobbs committed misconduct by denying his 

motion for continuance. Without a clear abuse of discretion, the granting or denial of a 
14

motion for continuance is within the trial court or arbitrator’s sound discretion and will not 

be disturbed on appeal. See State v. Wood Oil Distributing, Inc., 751 S.W.2d 863, 865 

(Tex. 1988).

Under both the TAA and the FAA, Walss’s motion for vacatur under this ground 

fails. The trial court should not have granted Walss’s motion to vacate the arbitration 

award. Walss did not show how Hobbs abused her discretion or how Walss 

demonstrated sufficient cause for the postponement under the TAA or the FAA. We 

sustain Columbia Valley’s main issue. 

3. Evident Partiality

By its second sub-issue, Columbia Valley argues that Walss did not establish 

evident partiality that he raised in his motion to vacate the arbitration award. In order to 

have a showing of evident partiality, an arbitrator would “exhibit evident partiality under 

[section 171.014 of the Texas Civil Practice and Remedies Code] if the arbitrator does 

not disclose facts which might, to an objective observer, create a reasonable impression 

of the arbitrator’s partiality.” Burlington Northern R. Co. v. TUCO Inc., 960 S.W.2d 629, 

629–630 (Tex. 1997). “A party seeking to vacate an award on the basis of evident 

partiality must prove the existence of facts that would establish a reasonable impression 

of the arbitrator’s partiality to one party.” Babcock & Wilcox Co. v. PMAC, Ltd., 863 

S.W.2d 225, 233 (Tex. App.—Houston [14th Dist.] 1993, writ denied). In Commonwealth

Coatings Corp. v. Continental Casualty Co., the United States Supreme Court imposed 

“the simple requirement that arbitrators disclose to the parties any dealings that might 

create the impression of possible bias.” Burlington, 960 S.W.2d at 633 (quoting 

Commonwealth, 393 U.S. 145, 149 (1968)). Courts have determined that “something 
15

more than an ‘appearance of bias’ was necessary to disqualify an arbitrator.” Burlington, 

960 S.W.2d at 633 (referring to the fact that most arbitrators are experts in a particular 

field and could have had prior remote dealings with either party).

 Evident partiality is normally found when there were prior undisclosed relationships 

between the arbitrator and one of the parties. Neither party argues that Arbitrator Hobbs 

had a prior or current relationship with either party that would have caused her bias. See 

id. Additionally, Walss does not make a showing of facts that would lead an objective 

observer to believe there was bias or impartiality towards Walss or Columbia Valley. 

See id. at 629–30. Walss filed his motion to vacate the award on the basis of bias due 

to the denial of his motion for continuance. Walss never argued to the trial court or this 

court that Hobbs had an undisclosed relationship or prior bias that was unknown to him. 

We conclude that Walss failed to show that Hobbs demonstrated evident partiality 

towards either side or that either party argued that she did to the trial court. 

4. Substantive Unconscionability 

By its fourth sub-issue, Columbia Valley argues that Walss raised the issue of 

substantive unconscionability in his motion to vacate the arbitration award. In his motion 

to the trial court, Walss claims the arbitration agreement “can be unconscionable if a party 

asserts, among other things, that discovery is unfairly limited, and/or the agreement 

unfairly demands waiver of the right to a jury trial.” See Walker v. Ryan’s Family Steak 

Houses, Inc., 400 F.3d 370, 384–85 (6th Cir. 2005). Walss goes on to say: “In the 

instant case, only one deposition was permitted by the arbitrator–that of Defendant Walss. 

The arbitrator denied Walss’s request to continue the hearing on Plaintiff’s Motion for 

Summary Judgment, thus denying Walss the opportunity to depose Plaintiff’s designated 
16

experts and Co-Defendant Alberto Aguayo M.D.” However, later in the same motion, 

Walss asserts that he is not requesting the vacatur of the arbitration award based on the 

correctness of the decision or merits of the case, but instead claims “the arbitrator’s 

actions constitute substantive unconscionability by unfairly limiting the discovery to which 

Walss was entitled.”

“Substantive unconscionability refers to the fairness of the arbitration provision 

itself, whereas procedural unconscionability refers to the circumstances surrounding 

adoption of the arbitration provision.” Royston, Rayzor, Vickery, & Williams, LLP v. 

Lopez, 467 S.W.3d 494, 499 (Tex. 2015). Although Walss quotes Walker v. Ryan’s 

Family Steak Houses, Inc., that case addresses adhesion contracts and the arbitration 

provision itself. 400 F.3d 370, 384–85 (6th Cir. 2005). Columbia Valley correctly 

asserts in a footnote that “the issues of ‘substantive unconscionability’ relate to the 

agreement to arbitrate, not to the arbitrator’s rulings. In any unconscionability inquiry, 

courts focus on two aspects of contract formation–procedural unconscionability and 

substantive unconscionability.” Pony Express Courier Corp. v. Morris, 921 S.W.2d 817, 

821–22 (Tex. App.—San Antonio 1996, no writ). Walss does not claim the contract was 

unfair; he claims it was unfair of Hobbs to deny his motion for continuance. Therefore, 

the issue is not properly before us to review and we decline to address it. 

C. Summary

We agree with Columbia Valley’s main issue and that the trial court did err in 

vacating the arbitration award. Hobbs did not abuse her discretion in denying Walss’s 

motion for continuance under both the TAA and FAA requirements. Hobbs did not 

display any evident partiality towards Columbia Valley, and there was no undisclosed 
17

relationship that would have led to any bias between Hobbs and the parties. 

Additionally, there was no showing of substantive unconscionability by Hobbs, as there 

was no argument regarding the arbitration clause itself. 

III. CONCLUSION

We reverse the trial court’s judgment vacating the arbitration award and remand 

to the trial court for further proceedings consistent with this opinion.

GINA M. BENAVIDES,

Justice

Delivered and filed the

29th day of December, 2015.