Affirmed and Memorandum Opinion filed April 14, 2015.

In The 

Fourteenth Court of Appeals 

NO. 14-14-00271-CV

KNJ ENTERPRISES, INC., Appellant 

V.

WILBANKS & WILBANKS, P.C., H. ERWIN WILBANKS, AND 

FIDELITY NATIONAL TITLE INSURANCE COMPANY, Appellees 

On Appeal from the 164th District Court 

Harris County, Texas 

Trial Court Cause No. 2012-42583 

M E M O R A N D U M O P I N I O N 

The trial court signed an order compelling arbitration of all claims between 

appellant KNJ Enterprises, Inc. and appellees Wilbanks & Wilbanks, P.C., H. 

Erwin Wilbanks, and Fidelity National Title Insurance Company (collectively 

“Wilbanks”). Wilbanks initiated arbitration in conformity with the trial court’s 

order. KNJ received notice of the arbitration initiated by Wilbanks but did not 

participate in it; instead, KNJ initiated a separate arbitration proceeding against 
2

Wilbanks. The trial court enjoined the parties from moving forward with the 

arbitration initiated by KNJ. The arbitration initiated by Wilbanks resulted in an 

award in favor of Wilbanks on the claims against KNJ. The trial court signed a 

final judgment in which it confirmed the arbitrator’s award in favor of Wilbanks 

and ordered that KNJ take nothing on its claims against Wilbanks. 

In a single issue, KNJ contends on appeal that the trial court erred in signing 

a take-nothing judgment as to KNJ’s claims against Wilbanks because KNJ’s 

claims were not decided in the arbitration proceeding initiated by Wilbanks and 

remain pending before a different arbitrator. Finding no error, we affirm. 

BACKGROUND

The relevant arbitration provision is included in a letter agreement between 

KNJ and Wilbanks & Wilbanks, P.C. The letter agreement concerns a real estate 

transaction. 

In March 2010, KNJ purchased a piece of real property that was encumbered 

by a mortgage securing the repayment of a Small Business Administration 

(“SBA”) loan. In connection with its purchase, KNJ assumed the obligation to 

repay this loan. KNJ also executed a second mortgage with a private lender. 

The SBA mortgage contained a due-on-sale clause that required the loan to 

be repaid in full upon a sale of the property. KNJ did not record the real estate 

transfer documents in connection with its purchase of the property because it did 

not wish to trigger the due-on-sale clause. Instead, KNJ entered into a letter 

agreement with Wilbanks & Wilbanks, P.C. to hold the property transfer 

documents in escrow until KNJ obtained financing to repay in full the SBA and 

private loans. 
3

The letter agreement states: 

All parties agree to hold Wilbanks & Wilbanks, PC, its attorneys, 

agents, principals, and employees harmless from any damage as a 

result of this escrow. The undersigned also agree that they will 

indemnify Wilbanks & Wilbanks, PC for any and all cost which may 

be involved in the escrow of these documents.

Any dispute will be resolved by [a]rbitration according to the rules of 

the American Arbitration Association, as amended.

KNJ did not obtain financing as contemplated by the letter agreement. 

The Texas Comptroller of Public Accounts filed a notice of a tax lien against 

the property in November 2010. KNJ sold the property to Dawani Investments, 

Inc. in March 2011, and the property transfer documents again were held in 

escrow. 

Dawani obtained a loan commitment from a lender after purchasing the 

property. The contemplated loan would have repaid the SBA loan and KNJ’s 2010 

private loan. The property transfer documents were recorded in the Harris County 

Clerk’s office after Dawani received its loan commitment. Dawani failed to close 

on the loan after a title search revealed that the property was encumbered by an 

outstanding tax lien. 

 Dawani sued KNJ asserting claims for declaratory relief, breach of contract, 

and breach of warranty based on KNJ’s failure to disclose or cure the tax lien prior 

to selling the property. 

KNJ answered Dawani’s lawsuit and filed a third-party petition against 

Wilbanks & Wilbanks, P.C. and H. Erwin Wilbanks, asserting claims for 

negligence, breach of fiduciary duty, breach of contract, fraud, and misapplication 

of fiduciary property. KNJ asserted, among other things, that Wilbanks failed to 

conduct a title search prior to the closings of the 2010 and 2011 property sales. 
4

KNJ also sued Fidelity National Title Insurance Company for negligent 

supervision of Wilbanks based on allegations that Wilbanks operated as an agent 

of the title insurance company retained by Wilbanks, and that the title insurance 

company operated as Fidelity’s agent. Dawani nonsuited its claims, and the case 

continued between KNJ, Wilbanks, and Fidelity.1

Wilbanks filed a motion to compel arbitration of all claims asserted by KNJ. 

The trial court granted Wilbanks’s motion and ordered the parties to arbitrate the 

following claims: “(i) [KNJ]’s claims against Wilbanks & Wilbanks, P.C. and H. 

Erwin Wilbanks (and/or Fidelity National Title Insurance Company), and (ii) any 

claims by Wilbanks & Wilbanks, P.C. and/or H. Erwin Wilbanks against [KNJ].” 

 Wilbanks initiated an arbitration proceeding against KNJ with the American 

Arbitration Association in conformity with the trial court’s order compelling 

arbitration. The appellate record does not contain a specification of claims filed 

with the arbitrator or transcripts of arbitration hearings. The record contains an 

“Award of Arbitrator.” 

The Award of Arbitrator states: 

I, THE UNDERSIGNED ARBITRATOR, designated in accordance 

with an arbitration agreement entered into by the parties, was duly 

sworn. The case was submitted to arbitration under May 29, 2013 

[o]rder of the 164th Judicial District Court of Harris County, Texas. 

A hearing was held on October 18, 2013[,] in Houston, Texas. 

Participating in the hearing were Claimant’s [c]ounsel . . . and 

Claimant’s representative, H. Erwin Wilbanks. The Respondent, 

[KNJ], after due notice, (USPS certified and USPS First Class mail) 

was not represented at the hearing. The witness was sworn in, 

 

1 Dawani filed a second lawsuit against KNJ in the 164th Judicial District Court of Harris 

County under a separate cause number. The trial court denied KNJ’s motion to consolidate the 

cases. KNJ filed a petition for writ of mandamus seeking to compel consolidation by the trial 

court, which we denied. See In re KNJ Enters., Inc., No. 14-13-00753-CV, 2013 WL 5503745, 

at *1 (Tex. App.—Houston [14th Dist.] Oct. 1, 2013, no pet.) (per curiam).
5

questioned and evidence presented.

Cliamants’ [sic], Wilbanks & Wilbanks, PC and H. Erwin Wilbanks 

(Wilbanks), claims against KNJ Enterprises are GRANTED. KNJ 

Enterprises, Inc. and Wilbanks signed an agreement on February 28, 

2011[,] stating Wilbanks provided neither legal representation nor 

legal advice serving as escrow agent. On April 5, 2010[,] Wilbanks 

and KNJ Enterprises, Inc. signed a [l]etter [a]greement where the 

latter would reimburse Wilbanks’[s] expenses. Expenses claimed on 

the subject escrow are Wilbanks’[s] legal fees and expenses of 

$4,910.00.

Accordingly, the AWARD is: 

Respondent, KNJ Enterprises, Inc., shall pay to Claimant[s] $4,910.00 

USD within thirty (30) days.

The administrative fees of the American Arbitration Association 

totaling $975.00 and the compensation of the arbitrator totaling 

$850.00 shall be borne by Respondent, KNJ Enterprises, Inc. 

Therefore, Respondent shall reimburse Claimants the sum of 

$1,825.00, representing that portion of said fees and expenses in 

excess of the apportioned costs previously incurred by Claimants.

This [a]ward is in full settlement of all claims submitted to this 

[a]rbitration. All claims not expressly granted herein are hereby, 

denied.

Wilbanks filed a motion with the trial court to confirm the arbitrator’s award, and 

KNJ filed a motion to vacate the arbitrator’s award. KNJ asserted in its motion 

that (1) it failed to receive notice of the arbitration hearing; (2) it initiated a 

separate and still-pending arbitration proceeding; and (3) the arbitrator improperly 

entered an award based on KNJ’s no-answer default. 

The record shows that KNJ initiated a second arbitration proceeding two 

days before the hearing in the arbitration proceeding initiated by Wilbanks. The 

appellate record does not contain the exhibits to KNJ’s demand for arbitration, and 

the record does not include a specification of claims filed in the arbitration initiated 
6

by KNJ.2

 Wilbanks applied to the trial court for a temporary restraining order to abate 

proceedings in KNJ’s attempted arbitration. The trial court granted Wilbanks’s 

application and ordered the parties to refrain from moving forward in KNJ’s 

attempted arbitration. 

 After the arbitrator signed her award in the proceeding initiated by 

Wilbanks, the trial court signed an order vacating the award. The trial court later 

withdrew its order vacating the arbitrator’s award and referred the case back to the 

arbitrator to “determine whether [KNJ] had proper notice of the [arbitration] under 

the rules of the [American Arbitration Association].” The trial court also extended 

the stay on proceedings in KNJ’s attempted arbitration, stating: “It is the intention 

of the [c]ourt that all of [KNJ]’s claims be addressed solely in the [arbitration 

initiated by Wilbanks], and that [KNJ’s attempted arbitration] not proceed until 

future orders of the [c]ourt allow it [to do] so.” 

 The arbitrator held a hearing after the trial court referred the case back to the 

arbitrator. The arbitrator signed an “Order of Arbitrator” stating: “[KNJ] had 

proper notice of the proceedings filed with the [American Arbitration 

Association].” 

 Wilbanks then filed a second motion to confirm the arbitrator’s award. The 

trial court signed a final judgment on March 7, 2014, confirming the award. It 

ordered, among other things, that: “[KNJ] take nothing on its claims against 

WILBANKS & WILBANKS, P.C. and/or H. Erwin Wilbanks and/or Fidelity 

National Title Insurance Company.” The trial court’s judgment states: “This is a 

 

2

The appellate record contains a “Demand for Arbitration” form attached as an exhibit to 

KNJ’s sur-reply to Wilbanks’s first motion to confirm the arbitrator’s award. The Demand for 

Arbitration contains only a summary description of the dispute in the arbitration initiated by KNJ 

under the heading “The Nature of the Dispute.”
7

[f]inal [j]udgment, disposing of all claims brought by or against any and all 

parties.” KNJ timely appealed. 

ANALYSIS

 KNJ argues that the trial court erred by signing a final judgment disposing of 

KNJ’s claims against Wilbanks. KNJ asserts that its claims were not before the 

arbitrator; were not decided in arbitration; and remain pending in KNJ’s attempted 

arbitration. 

Assessing KNJ’s argument is made more difficult because KNJ’s brief does 

not cite to the appellate record. See Tex. R. App. P. 38.1(i) (“The brief must 

contain a clear and concise argument for the contentions made, with appropriate 

citations to authorities and to the record.”).3

 The record shows that the trial court 

granted Wilbanks’s motion to compel arbitration and specified that its order 

applied to the following claims: “(i) [KNJ]’s claims against Wilbanks & 

Wilbanks, P.C. and H. Erwin Wilbanks (and/or Fidelity National Title Insurance 

Company), and (ii) any claims by Wilbanks & Wilbanks, P.C. and/or H. Erwin 

Wilbanks against [KNJ].” KNJ does not challenge the trial court’s order referring 

the parties’ claims to arbitration.

 The appellate record does not contain a complete record of proceedings in 

the arbitration initiated by Wilbanks. Therefore, the record does not support KNJ’s 

 

3 KNJ cites four cases in total in its opening appellate brief and reply brief and does not 

cite any other authority. It cites three cases for the proposition that arbitrators, rather than courts, 

should decide matters of procedural arbitrability. See Howsam v. Dean Witter Reynolds, Inc., 

537 U.S. 79, 84-85 (2002); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557 (1964); W. 

Dow Hamm III Corp. v. Millennium Income Fund, L.L.C., 237 S.W.3d 745, 754 (Tex. App.—

Houston [1st Dist.] 2007, no pet.). It cites BHP Billiton Petroleum (Americas) Inc. v. Atlantia 

Offshore Ltd., 312 S.W.3d 813 (Tex. App.—Houston [1st Dist.] 2009, no pet.), for the 

proposition that “[c]oncurrent arbitrations can proceed between the named parties so long as the 

second arbitration is neither competing nor duplicative.”
8

assertion that its claims were not before the arbitrator.4 See Kline v. O’Quinn, 874 

S.W.2d 776, 781 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (trial court 

did not know what evidence or issues were submitted to the arbitration panel 

because no record was made of the arbitration proceedings); cf. Craft v. Davis, No. 

2-07-332-CV, 2008 WL 4180357, at *2 (Tex. App.—Fort Worth Sept. 11, 2008, 

no pet.) (mem. op.) (“Although [appellants] claim that the arbitrator decided issues 

not submitted to him by any party, without a record, we cannot determine whether 

[appellee] or [appellants] asked the arbitrator during the proceedings to decide 

those issues and thus whether the arbitrator did exceed his powers.”).5

 

4 KNJ asserts as follows: “[The arbitrator’s] award simply addressed Wilbanks’[s] 

indemnity claims against [KNJ] for attorneys’ fees” because those were the only claims 

“submitted to this [a]rbitration.” Wilbanks’s indemnity claims were not asserted as 

counterclaims in the trial court. The arbitration exhibits in the appellate record do not specify the 

number and legal basis of Wilbanks’s claims decided in arbitration.

5 An “Online Filing Demand for Arbitration Form” relating to the arbitration initiated by 

Wilbanks and various emails involving Wilbanks’s counsel, KNJ’s counsel, and a representative 

of the American Arbitration Association are included in the appellate record as exhibits to 

Wilbanks’s reply to its first motion to confirm the arbitrator’s award. The Online Filing Demand 

for Arbitration Form states under the heading “Claim Description:”

KNJ Enterprises, Inc. agreed to indemnify Wilbanks [&] Wilbanks, P.C. for

expenses incurred in connection with the subject escrow. Wilbanks [&]

Wilbanks, P.C. has incurred legal fees of $4,910.50 to date and seeks 

reimbursement of this amount from KNJ Enterprises, Inc., together with the 

additional fees incurred to defend against KNJ Enterprises, Inc.[’s] claims in this 

arbitration.

The emails discuss whether KNJ or Wilbanks should be considered the arbitration “claimant.” 

KNJ’s counsel asserts in an email: “KNJ is not the claimant and has not, as of yet, made any 

claims through arbitration.” The American Arbitration Association representative states in an 

email: “In accordance with the [American Arbitration Association] Rules, any answer, 

counterclaim, or objection to the locale shall be filed by July 1, 2013.” The arbitrator’s award is 

attached to Wilbanks’s second motion to confirm the award. The appellate record does not 

contain arbitration hearing transcripts. 

Among other things, the appellate record does not indicate (1) whether there were 

additional pleadings in arbitration initiated by Wilbanks beyond the Online Filing Demand for 

Arbitration Form; (2) whether Wilbanks supplemented its arbitration pleadings; (3) whether KNJ 

filed an answer, counterclaim, objection, or other response related to the arbitration initiated by 

Wilbanks; and (4) whether Wilbanks or KNJ otherwise raised KNJ’s claims before the arbitrator. 
9

We need not attempt to divine from the record or appellate briefing a list of 

specific claims that were “submitted” to the arbitrator in the proceeding initiated 

by Wilbanks. Regardless of which claims the parties now contend were placed 

before the arbitrator, the arbitrator’s award clearly disposed of all claims referred 

to arbitration by the trial court. 

The trial court’s order, signed May 29, 2013, referred all claims between 

KNJ and Wilbanks to arbitration. The arbitrator’s award states: “The case was 

submitted to arbitration under May 29, 2013 [o]rder of the 164th Judicial District 

Court of Harris County, Texas.” The award further states: “Cliamants’ [sic],

Wilbanks & Wilbanks, PC and H. Erwin Wilbanks (Wilbanks), claims against KNJ 

Enterprises are GRANTED.” The award concludes: “This [a]ward is in full 

settlement of all claims submitted to this [a]rbitration. All claims not expressly

granted herein are hereby, denied.” To the extent that Wilbanks placed before the 

arbitrator fewer than all of the claims referred to arbitration by the trial court, we 

determine that the arbitrator nevertheless decided all claims referred to arbitration 

by the trial court. This is so because the arbitrator (1) referenced the trial court’s 

broad referral order in her award; (2) granted Wilbanks’s claims; and (3) denied 

“all claims not expressly granted.”

It is undisputed that KNJ did not participate in the arbitration initiated by 

Wilbanks. According to KNJ, “[I]f [it] did not participate in [arbitration], it’s [sic] 

claims against Wilbanks and Fidelity were necessarily not considered by the 

arbitrator.” 

We reject KNJ’s argument. The arbitrator determined that KNJ received 

proper notice of the arbitration. KNJ could not prevent consideration of claims 

sent to arbitration by opting not to participate in an arbitration proceeding of which 

it had notice. See Tex. Civ. Prac. & Rem. Code Ann. § 171.046 (Vernon 2011) 
10

(“Unless otherwise provided by the agreement to arbitrate, the arbitrators may hear 

and determine the controversy on the evidence produced without regard to whether 

a party who has been notified as provided by Section 171.044 fails to appear.”); 

see also Venture Cotton Coop. v. Neudorf, No. 14-13-00808-CV, 2014 WL 

4557765, at *4 (Tex. App.—Houston [14th Dist.] Sept. 16, 2014, no pet.) (mem. 

op.) (trial court could not deny confirmation of an arbitration award under the 

Federal Arbitration Act based on a contention that the arbitrators erred when they 

determined that proper notice of the arbitration had been given to appellant and 

that ex parte proceedings were permitted under the arbitration rules).

The trial court confirmed the arbitrator’s award on Wilbanks’s second 

motion.6 KNJ does not assert any grounds for vacating, modifying, or correcting 

the award. See Tex. Civ. Prac. & Rem. Code Ann. § 171.087 (Vernon 2011) 

(“Unless grounds are offered for vacating, modifying, or correcting an award under 

Section 171.088 or 171.091, the court, on application of a party, shall confirm the 

award.”).7 Instead, KNJ contends that the arbitrator’s award does not decide 

 

6 KNJ asserts: “Neither the [c]ourt nor the arbitrator . . . had the authority to make the 

determination as to whether KNJ’s claims were duplicative of claims heard in an alternative 

arbitration.” KNJ does not support this statement with citations to the appellate record. We have 

reviewed the record. The trial court did not determine “whether KNJ’s claims were duplicative 

of claims heard in an alternative arbitration.” Instead, the trial court confirmed the arbitrator’s 

award. KNJ does not cite any legal authority for the proposition that a trial court cannot confirm 

an arbitration award when the claims the arbitrator decided have been made the subject of a 

second attempted arbitration. To the extent appellant argues that the trial court erred by signing 

a final judgment disposing of claims decided in the arbitration but made the subject of a second 

attempted arbitration, we reject the argument as inadequately briefed. See Tex. R. App. P. 

38.1(i); Sterling v. Alexander, 99 S.W.3d 793, 799 (Tex. App.—Houston [14th Dist.] 2003, pet. 

denied) (issue waived as inadequately briefed because appellant failed to make proper citations 

to authority and failed to make a cogent argument).

7 The letter agreement, which contains the arbitration provision, does not state whether 

the Federal Arbitration Act (“FAA”) or the Texas General Arbitration Act (“TGAA”) governs 

the provision. See 9 U.S.C.A. §§ 1-16 (West 2009); Tex. Civ. Prac. & Rem. Code Ann. §§ 

171.001-.098 (Vernon 2011). No party contends that the FAA governs the arbitration provision 

or excludes application of the TGAA. See In re D. Wilson Constr. Co., 196 S.W.3d 774, 780 
11

KNJ’s claims.8 We reject KNJ’s contention for the reasons set forth above. 

On this record, we overrule KNJ’s sole issue challenging the trial court’s 

final judgment directing that KNJ take nothing on its claims against Wilbanks. 

CONCLUSION

 Having overruled appellant’s sole issue, we affirm the trial court’s judgment. 

 /s/ William J. Boyce 

 Justice 

Panel consists of Chief Justice Frost and Justices Boyce and McCally. 

 

(Tex. 2006) (“The mere fact that a contract affects interstate commerce, thus triggering the FAA, 

does not preclude enforcement under the [TGAA] as well.”). We cite the TGAA because 

“[p]rocedural 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.” Roehrs v. 

FSI Holdings, Inc., 246 S.W.3d 796, 804 (Tex. App.—Dallas 2008, pet. denied). 

8 KNJ does not contest the trial court’s authority to confirm the award and sign a final 

judgement with respect to Wilbanks’s claims against KNJ.