Affirmed; Opinion Filed November 17, 2017.

In The 

## Court of Appeals Fifth District of Texas at Dallas

No. 05 - 16 - 01232 - CV BRAD HERRIAGE AND LO GISTICS SOLUTIONS IN TL., LLC , Appellant s V. BNSF LOGISTICS , LLC , Appellee On Appeal from the 162nd Judicial District Court

Dallas County, Texas Trial Court Cause No. DC - 16 - 07547 

### MEMORANDUM OPINION Before Justices Francis, Myers, and Whitehill

Opinion by Justice Myers Appellants Brad Herriage and Lo gistics Solutions International (LSI) appeal the trial court’s order confirming an arbitration award in favor of appellee BNSF Logistics (BNSF)
. In four issues, appellants contend the trial court erred by confirming the award because of lack of notice; th e “ ex parte ” arbitration substantially prejudiced the rights of Herriage and LSI ; and no return receipt of notice for arbitration was obtained by the arbitrator, the American Arbitration Association, or BNSF, as required by controlling statutes. We affirm
. B ACKGROUND AND P ROCEDURAL H ISTORY BNSF is a third

- party logistics company providing transportation services by road, rail, water, and air. Herriage is the owner of LSI
. On July 24, 2013, Herriage and LSI entered into a l imited and p articular purpose a gency a greement (the “ a greement”) with BNSF. Both BNSF and Herriage, individually and on behalf of LSI, signed the a greement. The a greement was for a– 2

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one - year term that would “be renewed for a duration of one year, if neither party provides to the other ‘notice of permitting expiration’ of at least forty

- five (45) days prior to the expiration , ” and could terminate “at any time with no fewer than thirty (30) days written notice to the other.” The “Dispute Resolution and Arbitration” section of the agreement, section 12, provided that any unresolved dispute must be submitted to arbitration in accordance with the commercial rules of arbitration of the American Arbitration Associa tion (AAA). The agreement further provided that “ [t]he terms and conditions of this AGREEMENT will begin on October 18, 2012 and, unless terminated by Agency or Broker, shall conclude one year later , on October 17, 2012 (the ‘expiration’) . . . .” Because , however, the agreement was not signed until July 24, 2013, it could not have bec ome effective in October 2012. In addition, the agreement could not expire before its term even began. We therefore agree with appellees that this provision contains a typo graphical error. And as shown in the record, appellants continued to do business with BNSF until 2015, undermining any contention that the agreement terminated in 2013. BNSF claimed a ppellants breached the a greement and sent a demand letter dated Septe mber 24, 2015, to Herriage and LSI by certified mail demanding they cease engaging in conduct that violated their obligations under the a greement. BNSF further alleged it had pa id
a ppellants a commission on shipments for which BNSF never received payment from the customer, requiring a ppellants to refund the corresponding commission s to BNSF under the
a greement. H erriage and LSI refused to accept the demand letter , but s omeone wrote “kiss my ass” and “refused” on the e nvelope that was returned to BNSF’s counsel. Herriage denied writing anyt hing on the envelope. In December of 2015, BNSF instituted arbitration proceedings against a ppellants arising out of their alleged breaches of the a greement. In accordance with the agreement, BNSF sent a– 3

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copy of the d emand for a rbitration to Herriage and LSI by electronic mail and by regular and certified mail. On December 15, 2015, the AAA sent correspondence to BNSF’s counsel and to appellants acknowledging receipt of the d emand for a rbitration. A ppellants having failed to respond or object regarding the location requested by the claimant or the AAA’s choice of arbitrator , the AAA confirmed the selection of Dallas as the loca tion for the arbitration and Steven K. DeWolf as the arbitrator. Following a preliminary conference , the arbitrator issued a February 26, 2016 scheduling o rder notifying the parties that the arbitration would take place on May 4, 2016 , in Dallas, Texas
. Th e scheduling order stated that appellants, although “ properly notified ” of the preliminary conference, “ chose not to attend , ” and it wa s transmitted to Herriage via electronic mail t o the email address brad@lsiworld.com
. On March 1, 2016, o ver two months before the May 4 th arbitration hearing, the AAA sent notices of the hearing to Herriage via both electronic mail to the email address brad@lsiworld.com and certifie d mail to the address 1150 Mason Street, Lantana, Texas 76226, which is the address listed i n the agreement
. O n April 28, 2016 , six days be fore the hearing , the AAA sent a n additional reminder of the hearing date to Herriage via electronic mail to the email address brad@lsiworld.com and first class and certified mail to the 1150 Mason Street address
. Herriage testified that 1150 Mason Stree t was his residential address. Herriage subsequently moved, but h e received forwarded mail at the new address and he testified that he received notice of the hearing at least the day before the hearing. Herriage recalled that a man delivered the notice and he “had to sign for it.” Appellants’ verified answer likewise states that Herriage received notice of the hearing on the evening before, on May 3, 2016. Herriage testified that he chose not to appear at the May 4 th hearing or to contact anyone and ask for more time or ask for a new hearing
. On May 4, 2016, the arbitrator held the arbitration hearing in Dallas and , on that same– 4

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day, entered a f

inal a ward in favor of BNSF. Th e arbitrator granted an award of $24,811.45 in dama ges, $26,213 in attorney s’ fees, $8,715.21 in costs and expenses, including AAA fees, and an injunction prohibiting Herriage and LSI from violating their non

- compete and non

- solicit obligations under the parties’ agreement for one year from the date of the final award. The award recite d that “[a]lthough R espondents received notice of the hearing by e

- mail and certified mail, confirmed by a certified mail delivery receipt, they did not appear.” Two days later, on May 6 th , BNSF requested via email that the arbitrator modify the original award to (1) reduce the costs awarded by $1,268.50 in light of the partial reimbursement by the AAA of certain fees paid by BNSF; and (2) increase the attorneys’ fees award by $377 t o properly account for the attorney ’ s fees incurred by BNSF through the hearing
. BNSF copied appellants on that email and sent the e - mail to the brad@lsiworld.com email address
. The AAA responded an d again copied a ppellants via e

- mail to that same email address
. On June 8, 2016, the arbitrator reduced the amount of arbitration costs but d id not increase the award of attorneys’ fees

. The AAA transmitted the modified final a ward to
a ppellants via e

- mail to the brad@lsiworld.com email address and first class and certified mail to the 1150 Mason Street address
. BNSF then filed suit to confirm the a ward. Following
a ppellants’ verified answer and motion to vacate the a ward, BNSF filed a first amended application to confirm the a ward. The trial court hel d a hearing on September 19, 2016 , on BNSF’s motion to confirm the award and appellants’ motion to vacate. At th e hearing, Herriage confirmed that “brad@lsiworld.com” was the correct email address. But he explained that he had not conducted business from that email address in approximately one year, and that he never closed the account and “just didn’t check it.” Asked whether there could have been “numerous emails” from the AAA in that email box, Herriage said, “There may be 10,000 emails. I don’t know .”– 5

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Granting BNSF’s motion to confirm the a ward , t he court explained its reasons in part as follows: The only basis for vacating is improper notice. Mr. Herriage says that the address was correct. The address to which documents were sent by the ADA

– – AA A. That the e

- mail address was correct. He just chose not to look at the e

- mail. Still may have thousands of letters in there. Clearly the address was good enough that he did receive at least one certified, but he doesn ’ t tell us how many other members of the family may have received mail. All he says is that he did not. I think the final award statement that notice was sent and was confirmed by certified mail delivery receipt is sufficient evidence that there was a certified mail receipt received by th e arbitrator, and I think that that is what’s required. So I am not suggesting that there is a misstatement of truth. What I ’ m suggesting is Mr. Herriage specifically says he just didn’t check his e

- mail, and he didn’t obviously check all of his regular mail or certified mail. So I think he fails to carry his burden to show that he was not properly noticed; therefore, there’s no basis for setting aside the arbitration and consequently I affirm the arbitration. The trial court also issued a written order d enying the motion to vacate the award and granting the motion to confirm the award. Appellants filed a notice of appe al from the trial court’s order.

S TANDARD OF R EVIEW AND A PPLICABLE L AW Review of a trial court ’ s decision as to vacatur or confirmation of an arbitration award is de novo and an appellate court reviews the entire record. Centex/Vestal v. Friendship W. Baptist Church , 314 S.W.3d 677, 683 (Tex. App.

— Dallas 20 10, pet. denied); In re Chestnut Energy Partners, Inc. , 300 S.W.3d 386, 397 (Tex. App.

– – Dallas 2009, pet. denied); see also Statewide Remodeling, Inc. v. Williams , 244 S.W.3d 564, 567 (Tex. App.

– – Dallas 2008, no pet.). Because Texas law favors arbitration, however, our review is “extremely narrow.” See Centex/Vestal , 3 14 S.W.3d at 683; Hisaw & Assoc. Gen. Contractors, Inc. v. Cornerstone Concrete Sys., Inc ., 115 S.W.3d 16, 18 (Tex. App.

– – Fort Worth 2003, pet. denied); I PCO

– G & C Joint Venture v. A.B. Chance Co ., 65 S.W.3d 252, 255

– 56 (Tex. App.

– – Houston [1st Dist.] 2001, pet. denied). An arbitration award has the same effect as a judgment of a court of last resort; accordingly, all reasonable presumptions are indulged in favor of the award and the award is conclusive on the– 6

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parties as to all matters of fact and law. CVN Group, Inc. v. Delgado , 95 S.W.3d 234, 238 (Tex. 2002); Centex/Vestal , 314 S.W.3d at 683; Bailey & Williams v. Westfall , 727 S.W.2d 86, 90 (Tex. App.

–

– Dallas 1987, writ ref ’ d n.r.e.). Review of an arbitration award is so limited that even a mistake of fact or law by the arbitrator in the application of substantive law is not a proper ground for vacating an award. Centex/Vestal , 314 S.W.3d at 683; Crossmark, Inc. v. Hazar , 124 S.W.3d 422, 429 (Tex. App.

– – Dallas 2004, pet. denied). This deference is intended to prevent disappointed litigants from seeking “to overturn every unfavorable arbitration award in court.” Hazar , 124 S.W.3d at 429. Based upon th e extremely narrow and deferential appellate review,

“‘‘ [d]isputes that are committed by contract to the arbitral process almost always are won or lost before the arbitrator. Successful court challenges are few and far between. ’ ’” T anox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P ., 105 S.W.3d 244, 250 (Tex. App.

– – Houston [14th Dist. 2003, pet. denied) ( quoting Gupta v. Cisco Sys., Inc. , 274 F.3d 1, 3 (1st Cir. 2001) (quoting Keebler Co. v. Truck Drivers, Local 170 , 247 F.3d 8, 10 (1st Cir. 2001) ) ). Under the T exas General A rbitration Act , a court must confirm an arbitrator ’ s award on application unless an opposing party establishes a statutory ground for vacating, modifying, or correcting the award. T EX . C IV . P RAC . & R EM . C ODE A NN . § 171.087 ; Centex/Vestal , 314 S.W.3d at 683. Section 171.088 of the c ivil p ractice and r emedies c ode states , in pa rt, that an arbitration award shall be vacated “ if . . . the arbitrators . . . 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 . . . .” T EX . C IV . P RAC . & R EM . C ODE A NN . § 171.088(a)(3)(D). Appellants bear the burden o f establish ing one of the statutory grounds for disturbing the a ward. Hazar , 124 S.W.3d at 430 (citing T EX . C IV . P RAC . & R EM . C ODE § 171.093). Section 171.044 provides in part as follows : (a) Unless otherwise provided by the agreement to arbitrate, the arbitrators shall set a time and place for the hearing and notify each party.– 7

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(b) The notice must be served not later than the fifth day before the hearing either personally or by registered mail with return receipt requested. Appearance at the hearing waives the notice. T EX . C IV . P RAC . & R EM . C ODE A NN . § 171.044(a)

– (b). D ISCUSSION 1. T he May 4, 2016 Final Award In their first issue, appellants contend the trial court erred by co nfirming the May 4, 2016 arbitration award because of lack of notice. In their fourth issue, appellants argue that no certified mail “return receipt” or “green card” of the notice for arbitration was obtained by the arbitrator, AAA, or BNSF, as required b y law. See id. § 171.044(b). We will address these issues together. Appellants argue the arbitration held on May 4th was void for being held “ ex parte ” because statutory notice was not provided in accordance with section 171.044, which requires that notice must be served not later than the fifth day before the hearing, either personally or by registered mail with return receipt requested. See id . § 171.044 (b)
. Appellants assert that nothing in the record shows the arbitrator or the AAA actually prov ided notice by registered mail of th e May 4th hearing

–

– no return of service or “green card” for the notice was filed and no one with personal knowledge of service testif ied
. Appellants further argue that the AAA

– provided notice was ineffective because the statute states that the “ the arbitrator s shall set a time and place for the hearing and notify each party ,” see id
. § 171.044( a ) (emphasis added), but there is no evidence that the AAA employee who s ent the notice s was acting as an agent for the arbitrator. Appellants also argue that the purported lack of notice violated their due process rights. Due process generally requires that notice be “reasonably calculated, under the circumstances, to apprise interested parties of the p endency of the action and afford them the– 8

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opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co. , 339 U.S. 306, 314 (1950). But “ [t] he Due Process Clause does not mandate the parties be heard at the arbitration hearing; rathe r, the Due Process Clause requires that the parties be given a meaningful opportunity to be heard at the arbitration hearing.” Ewing v. Act Catastrophe

– Tex. L.C ., 375 S.W.3d 545, 551 (Tex. App.

–– Houston [14th Dist.] 2012, pet. denied); see Univ. of Tex. M ed. School v. Than , 90 1 S.W.2d 926, 930 (Tex. 1995). In the arbitration context, Texas courts have held that where the arbitrators attempt to notify parties of an arbitration hearing at the address provided in the arbitration agreement in compliance with the applicable statutes or agreed

- upon arbitration procedures, such attempted notice, even if unsuccessful, comports with due process. See, e.g ., Brozo v. Shearson Lehman, Hutton, Inc. , 865 S.W.2d 509, 511

– 12 (Tex. App.

–– Corpus Christi 1993, no writ) (service on party’s former attorney who had not formally withdraw n was sufficient to satisfy due process concerns because it was “reasonably calculated to apprise the party of the suit”) ; Venture Cotton Co

- op v. Neudorf , No. 14

– 13

– 00808

– CV, 2014 WL 4557765 , at *5 (Tex. App.

— Houston [14th Dist.] Sept. 16, 2014, no pet.) (mem. op.) (affirming trial court’s decision confirming an arbitration award and noting that d ue p rocess “ is satisfied when notice procedures are followed in compliance with the rules under w hich the parties agreed to be bound”); Ying Chun Tan v. Hung Pin Lee , No. 14

– 06

– 00319

– CV, 2007 WL 582084, at *4 (Tex. App.

–– Houston [14th Dist.] Feb. 27, 2007, no pet.) (mem. op.) (rejecting argument that attempted notice failed to satisfy due process beca use the notice complied with the arbitration rules consented to by the parties). Here, the parties agreed in section 12 of the agreement that any and all unresolved disputes or controversies relating to or arising out of the agreement would “be submitted to arbitration in accordance with the Commercial Rules of Arbitration of the American Arbitration Association.” Rule 24 of the AAA’s Commercial Arbitration Rules provide s in part that “[t]he– 9

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AAA shall send a notice of hearing to the parties at least 10 c alendar days in advance of the hearing date, unless otherwise agreed by the parties.” See Am
. Arbitration Ass ’n , Commercial Arbitration Rules & Mediation Procedures, R

- 24 : Date, Time and Place of Hearing (eff. Oct. 1, 2013), available at https://www.adr.org/Rules
. Where parties consent to certain arbitration rules, those rules govern the notice requirement. See T EX . C IV . P RAC . & R EM . C ODE A NN . § 171.044(a) (“ Unless otherwise provided by the agreement to arbitrate , the arbitrators shall set a time and place for the hearing and notify each party.”) (emphasis added); see also Tan , 2007 WL 582084, at *2 ( where the parties agreed to proceed under the National Association of Securities Dealers Code of Arbitration Procedure that contained rules governing notice, compliance with those rules was sufficient). Furthermore, d ue process is satisfied when notice procedures are followed in compliance with the rules under which the parties agreed to be bound. See Mullane , 339 U.S. at 31 4 ; see also Saks v. Rogers , No. 04

– 16

– 00286

– CV, 2017 WL 3159712, at *9 (Tex. App.

–– San Antonio July 26, 2017, no pet.) (mem. op.); Venture Cotton Co

- op. , 2014 WL 4557765, at *5 . “ If a party’s absence at the arbitration hearing is the result of her decision not to attend, there is no due process violation. ” Ewing , 375 S.W.3d at 552
. The record shows the AAA sent notice of the May 4th arbitration hearing to appellants on two occasions via both electronic and certified mail

– – one was approximate l y two months before the hearing; the other six days before the hearing. The written notices were sent to the physical address listed in the agreement, and the electronic notices were sent to an email address that Herriage admitted he conducted business fro m in the past but that he no longer bothered to check and had never closed
. As the trial court point ed out when it confirmed the arbitration award , Herriage acknowledged t here could have been thousands of unread e mails from the AAA in the email account; h e did not know. In addition, t he final a ward recite d that “ [r] espondents received notice of the hearing by e

- mail and certified mail, confirmed by a certified mail delivery receipt
. ”– 10

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Moreover , Herriage admitted he had notice of the arbitration hearing , albeit o n the evening before , and chose not to attend. See id
. Because a ppellants agreed to be bound by the AAA’s C ommercial A rbitration R ules and the record shows the AAA complied with th e notice requirement, a

ppellants’ due process argument fails
. Fo r th ese same reason s , appellants’ reliance on the fact that a AAA employee , rather than the arbitrator, sent the written notice is unpersuasive
. To begin with, appellants did not argue in the trial court that notice by the AAA instead of the arbitrator re ndered the notice ineffective, indicating this argument was not preserved. See T EX . R. A PP . P . 33.1(a)(1). Assuming, however, that the argument was preserved for appellate review, the AAA’s rules provide that the AAA shall send the notice of the hearing to the parties , and the record s hows such notice was provided. A lthough it was the AAA that sent the notice s , the scheduling order containing the hearing date was included in n otice s sent to appellants
. Appellants assert that the AAA was not acting as th e arbitrator’s agent, but they provide no authority for th is argument and, i n any event, the record undercuts the argument because the scheduling order was prepared by the arbitrat or, whom the AAA appointed
. We further conclude that appellants’ reliance on case law discussing service under the Texas Rules of Civil Procedure is unconvincing because those cases do not apply where, as in this case , the parties agreed to rely on the AAA’s C ommercial A rbitration R ules. See Hazar , 124 S.W.3d at 432 n. 10
. As for appellants’ argument that there is no certified mail “return receipt” or “green card” in the record, t he final award recited that although appellants received notice of the hearing by email and certified mail, confirmed by a certified mail de livery receipt, they did not appear. Texas law provides that all reasonable presumptions are indulged in favor of an arbitration award, and none against it. See Statewide Remodeling, 244 S.W.3d at 568 (an a rbitration award ha s same effect as a judgment o f a court last resort); Brozo , 865 S.W.2d at 511 ( holding notice– 11

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was proper under arbitration association’s rules and concluding that “[t]hough the record does not show that the [arbitration association] sent th[e] notice by registered or certified mail, the arbitrators, interpreters of the [arbitration association’s] rules, apparently found the notice provided satisfied [the rule in question] because they conducted the hearing and ruled for [one party]”) ; KNJ Enters., Inc. v. Wilbanks & Wilbanks , P.C. , No . 14

– 14

– 00271

– CV, 2015 WL 1736400, at *5 (Tex. App.

— Houston [14th Dist.] Apr. 14, 2015, no pet.) (mem. op.) (rejecting argument that party did not receive notice of arbitration hearing because “[t]he arbitrator determined that [the party] received prop er n otice of the arbitration.”). Moreover, as discussed more fully below, without a transcript of the arbitration proceedings we are required to presume the evidence adequately supported the a rbitration a ward. S ee Statewide Remodeling , 244 S.W.3d at 568. We therefore overrule appellants’ first and fourth issues.

2. The June 8, 2016 Modification of the Final Award In their second issue, appellants contend the trial court erred by confirming the final award because of a lack of notice of BNSF’s request to mo dify the original award
. Appellants also argue the arbitrator’s modification was impermissible because it “ was not based on a miscalculation of figures o r an evident mistake in description.” The record shows BNSF requested via email that the arbitrator modify the original award to reduce the amount of arbitration costs and increase the attorneys ’ fees award
. BNSF copied appellants on that email to the email address brad@lsiworld.com , and Herriage testified he had conducted business from t hat email address in the past but had not checked it for approximately one year and n ever closed the account. The arbitrator reduced the fees and expenses award ed but declined BNSF’s request for additional attorneys ’ fees
. In a June 8, 201 6 email to the AAA’s manager of ADR services, t he arbitrator explained he did “ not have the authority to modify the amount of attorneys’ fees based on new evidence. The hearing was closed and my authority only– 12

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extends to making modifications based on calculation errors. ” The modified award f ound that
a ppellants failed to respond , and the a rbitrator did not issue t h e modification until over thirty days after BNSF requested the modification. We conclude t he record shows appellants failed to respond despite being notified of the requested modification. Accordingly, they cannot now complain about lack of notice when the record shows they received notice of BNSF’s requested modification and failed to respond
. As for appellants’ argument that the arbitrator’s modifi cation was impermissible, it is worth noting that BNSF sought to modify the original award to reduce the total amount of the award , not increase it
. Additionally , the arbitrator’s modification of the original award to reduce the amount of arbitration fees and expenses awarded to BNS F was proper because the Texas Civil Practice and Remedies Code permits an arbitrator to modify or correct an award (1) “ on the grounds stated in Section 171.091; ” or (2) “ to clarify the award. ” T EX . C IV . P RAC . & R EM . C ODE A NN . § 171.054(a). Section 171.091 provides that, on application, the court shall modify or correct an award if: (1) the award contains: (A) an evident miscalculation of numbers ; or (B) an evident mistake in the description of a person, thing, or property referred to in the award; (2) the arbitrators have made an award with respect to a matter not submitted to them and the award may be corrected without affecting the merits of the decision made with respect to the issues that were submitted; or (3) the form of the award is imperfect in a manner not affecting the merits of the controversy. Id . § 171.091(a) (emphasis added). The c orrection of “clerical, typographical, or computational errors” in the arbitration award is permissible
. See Am. Arbitration Ass’n, Commercial Arbitration Rules & Mediation Procedures, R

- 50: Modification of Award (eff. Oct. 1, 2013), available at– 13

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https://www.adr.org/Rules (“Within 20 calendar days after the transmittal of an award, any party, upon notice to the other parties, ma y request the arbitrator, through the AAA, to correct any clerical, typographical, or computational errors in the award.”). Whe n a trial court modifie s an award to correct the arbitrator’s omission of prejudgment interest in the final calculations, the

mo dification has been held to be permissible. See Sydow v. Verner , Liipfert, Bernhard

, McPherson & Hand, Chartered , 218 S.W.3d 162, 170 (Tex. App.

— Houston [14th Dist.] 2007, no pet.) (allowing addition of pre

- judgment interest because arbitrator “clearly in tended” to include th is in original award); Baker Hughes Oil field Ops., Inc. v. Hennig Prod’ n Co ., 164 S.W.3d 438, 446

– 47 (Tex. App.

— Houston [14th Dist.] 2005, no pet.) ( trial court did not resort to speculation when it correct ed award to include date pre - judgment interest began to accrue because arbitrator intended to award pre

- judgment interest ). When, however, the trial court trie s to modif y the award to include attorney s ’ expenses, it exceed s the scope of the modification
. Sydow , 218 S.W.3d at 169

– 70 ; see also, Barsness v. Scott , 126 S.W.3d 232, 23 9 (Tex
. App.

– – San Antonio 2003, pet. denied) (inclusion of indemnity award was an impermissible modification). In this case, the arbitrator intended to award BNSF the amount of arbitr ation costs attribu table to a ppellants and that were due under the a greement , which included a provision awarding filing fees and the costs of the arbitration to the prevailing party. The arbitrator did not add damages or remedies when he modified the original award

– – he reduced the total amount awarded. In modifying the original a ward to include the actual costs incurred by BNSF , which were less than what was originally awarded , we conclude t he arbitrator made a computational correction that was permitted under Texas law
. See T EX . C IV . P RAC . & R EM . C ODE A NN . §§ 171.054(a), 171.091(a); Sydow , 218 S.W.3d at 170; Baker Hughes Oilfiel d Ops., Inc ., 164 S.W.3d at 446

– 47. We overrule appellants’ second issue.– 14

– 3. Substantial Prejudice In their third issue, appellants argue the “ex parte” arbitration substantially prejudiced their rights “for enforcing a contract which had expired eight to ten months prior to the claim against them.” Appellants had the burden of establishing that the alleged lack of notice substantially prejudi ced their rights. See T EX . C IV . P RAC . & R EM . C ODE A NN . § 171.088(a)(3 ) (requiring a showing that the arbitrator conducted the hearing contrary to s ection 171.044 “in a manner that substantially prejudiced the rights of a party”). As we have already concl uded, however, the record shows appellants received adequate notice of the arbitration hearing and failed to attend , so we need not reach this question
. Furthermore, appellants did not meet their burden
. “ When a non

- prevailing party seeks to vacate an a rbitration award, it bears the burden in the trial court of bringing forth a complete record that establishes its basis for vacating the award. ” Statewide Remodeling , 244 S.W.3d at 568
. W hen , as in this case, there is no transcript of the arbitration hearing, we presume the evidence was adequate to support the award. See id. ; Henry S. Miller Brokerage, LLC v. Sanders , No. 05

– 14

– 01618

– CV, 2015 WL 4600218, at *3 (Tex. App.

— Dallas July 31, 2015, no pet.) (mem. o p.); Goldman v. Buchanan , No. 05

– 12

– 00050

– CV, 2013 WL 1281744, at *2 (Tex. App.

— Dallas Mar. 21, 2013, no pet.) (mem. op.). “ Many Texas courts have held that without a complete record of the evidence presented to the arbitrator at the arbitration proceedin gs, there can be no appellate review of the arbitrator’s decision. ” Statewide Remodeling , 244 S.W.3d at 568
. In addition, a counsel’s statements regarding what occurred at the hearing do not substitute for a record of those proceedings. See id. at 569; H enry S. Miller Brokerage , 2015 WL 4600218, at *3
. Hence , we cannot say the trial cour t erred in confirming the arbitration award , and w e overrule appellants’ third issue.– 15

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W e affirm the trial court’s judgment

.

161232F.P05 /Lana Myers/ LANA MYERS JUSTICE– 16

– 

## Court of Appeals Fifth District of Texas at Dallas

JUDGMENT
BRAD HERRIAGE AND LOGISTICS SOLUTIONS INTL., LLC, Appellants No. 05

- 16

- 01232

- CV V. BNSF LOGISTICS, LLC, Appellee On Appeal from the 162nd Judicial District Court, Dalla s County, Texas Trial Court Cause No. DC

- 16

- 07547. Opinion delivered by Justice Myers. Justices Francis and Whitehill participating. In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED . It is ORDERED that appellee BNSF LOGISTICS, LLC recover its costs of this appeal from appellants BRAD HERRIAGE AND LOGISTICS SOLUTIONS INTL., LLC. Judgment entered this 17th day of November, 2017.