Reversed and Remanded and Memorandum Opinion filed April 14 , 2022
.

In The 

## Fourteenth Court of Appeals

NO. 14
- 20
- 00197
- CV

ABDOLRAHIM SHARIFAN , Appellant

V. LLOYD KELLEY , Appellee
On Appeal from the 215th District Court

Harris County, Texas Trial C ourt Cause No. 2019
- 18502

MEMORANDUM OPINION Appellant Abdolrahim Sharifan appe als the judgment ag ainst him upholding the a rbitra tion award in fa vor o f app ellee Lloyd Kelley. In two issues appellant argues that we should vacate the arbitrator ’ s award o n the ground of evident partiality of the arbitrator and because the arbitratio n clause was unconscionable. We re verse and remand.2 I. E VIDENT P ARTIALI TY In his firs t issue, appell ant argues that the arbitration award should be vacated on the ground of evid en t partiality b eca use the arbitrator, David West , failed to disclose the prior attorney

- client relationship between appellee and West

o r West ’ s law firm. Appel l ee argues that appellant has failed to preserv e error or waived his argument on appeal becaus e appellant d id not (1) object in writing prior to the first arbitration hearing pursuant to the agreement , (2) provide a full record , (3) obtain a ruling on his motion to vacate , or (4) request or obtain f indings of fact and con clusions of law.
A. General Le g al Principles
Review of an arbitration award is “ extraordinarily narrow
. ” Amoco D.T. C o. v. Occidental Petrol eum Corp. , 343 S.W.3d 837, 841 (Tex. App.

— Houston [14th Dist.] 2011, pet. denied). “ Under the TAA, a trial court shall vacate an awa rd if the r ights of a party were p rejudiced by the ‘ evident partiality of an arbitrator appointed as a neutral arbitra tor. ’ ” In re Marriage of P iske , 578 S.W.3d 625 , 6 28 (Tex. App.

— Housto n [14th Dist.] 2019, no pet.) (quoting Tex. C iv. Prac. & Rem. Code § 171.0 8 8(a ) (2)(A))

. A party s eeking to vacate an a rbitration award bears the burden of presenting a complete record that establishe s grounds fo r vacatur. Id

.

“ Courts must vacate arbit ration awards when ‘ the rights of a party were pre judi ce d by . . . eviden t p a rtia lity by an arbitra t or a ppoin ted as a neutral arbitrator. ’ ” Forest O il Corp. v. El Ru cio La nd & Cattle Co. , 518 S.W.3d 422, 4 31 (Tex. 2017 ) (quoting Tex. Civ. Prac. & Rem. Code § 177.088(a)(2)(A) ).
We review a tria l cour t ’ s leg al decision o f whether to vacate an a rbitration

awar d de novo. Builders First S ource
- S. Tex. , LP v. Ortiz , 515 S.W.3d 451, 455 (Tex. App.

— Houston [14t h Dist.] 2017, pet. denied) . We review any factual findings for legal and factual sufficien cy
. Marriage of P iske , 578 S.W.3d at 6 29

.3

H owever, when there ar e no “ material conflict s ” in the evidence, then no deference is req uired. Id

.

“ [A] prospective neut ral arbitr ator . . . exhibits eviden t partiality i f he or she does not disclose facts which might , to an objective obs e rver, create a reasona b le impr ession of the arbitrator ’ s partiality. ” B u rlingto n N. R . Co. v. T UCO, Inc. , 9 60 S.W.2d 629 , 636 (Tex. 1997 ). “ [ T]his evident partiality is establis hed from the nondis closure it self, regardless of whether the nondisc losed in f ormati on necessarily e s tablishes partiality or bias. ” Id

. “ While a neutral arb itrat o r nee d not disclose relationships or connections th at are trivial, the conscientious arbitrator should err in fa vor of disclosure. ” Id

. at 637. “ [ T] o preserve the inte g rity o f the selection p rocess , we hold that a party who could have ve t oed the a rbitra tor at the time of selection may disqualify the arb itrator during the course of the proceedings b ased on a new con flict which m ight reasonably affect the arbitrator ’ s imp a rtiali ty

. ” Id

. B. Back g round Appellee was appellant ’ s attorney in a litigation matter whe rein appellant was awarded a judgment (Un derly ing L i tigation ) . A dispute arose between appellee and appe llant regarding h ow to cal culate appellee ’ s attorn ey ’ s fees. Appel lee sought to ha v e the matter arb itrated p ursuant to the arbitration provision in the fee agreement. The arbitration ag reement provided in pertinent part that: [ Appellee] will send [appel lant] a list of t hree retired or former Texas cour t judges a n d just ices. The pa rti e s will utilize the 30 days to conduct their own diligence on the proposed arbitrators. [Appellant ] will then select a judge from the list and send it back to [appellee]. If [appellant] do es not return the list within 30 days, then [appel lee] shall se lec t from the list and notify [appellant].

. . . If the judge selected is4

unable or declines to serve, then t he process will be rep eated by [appellee] supplying three n ames, . . . and then [appellant ] or [ appellee] will select acco rdin g ly unt il an arbitrator is selected. Once selected, the ar bitrator shall establish the pre

- arbitration procedures and the arbi tration procedure. All objections to the arbitrator must be made in writing before the firs t hearing set by the arbitrator i s he l d or t he parties agree that all obj ections to the arbitrator a re thereby waived. Any objection to the arbitrator selected or to the arbitrator ’s fee must be made before the arbi trator renders a decision or said object ion is waived. The Texas Rules o f Ev i dence and Rules or P ro c edure shall guide the process and pro ceedings until altered by the arbitrat or. Pursuant to the a rbitration provision, a ppellee submitted thr ee names to appellant , one of wh om was David Wes t

. A ppellant a greed to West as an arbitrato r but “ con ditioned ” the agreement o n his ex

- wife ’ s participati on in the arbitration. Appellant ’ s ex
- wife refused to participate

. Appellant then al leged that he found out that he hired West , on appellee ’ s recommendation , as a n expert witness in the U nderly ing L i tigation

. A ppellant asked for a new arbitrato r and appellee refused to agree to a different arbitrator. Appellan t asked the trial court t o intervene in the matter and appoint an arbitr ator due to appellant ’ s concerns with West due to h is involvem ent in the U nderlying L itigation as an expert w itness

. After listening to arguments from the parties t he trial court appoint ed another arbitrator

. H ow ever, this arbitrator had a confl ict and decline d to serve. Thereafter, the trial court granted a ppellee ’ s mo tion to compel West as arbitrator

. Appell ant objected to W est ’ s appointment and requested th e trial court appoint another former judge as the arbitrator. Within a few days West confirmed he would serve as the arbitrator fo r the dispute and set a hearin g for October 22

. The day before the arbi tration hearing , appellant submitted written ob jections to West . In his objection appellant argued that West could not serve as a n impartial a rbitrator on a matter in which he was an5

expert witness

. A ppellant als o argued that West “ has a d uty to evaluate and r ecuse himse lf. ” Appellant also requested that West provide disclosures of any prior or current financi al dealings, including appellee ’ s “ use or desi re of West or any member of W est ’ s firm for any purpose b e ful ly disclosed

. ” Attached to the objectio n w ere two exhibits : (1) a 2015 email from appellee ’ s firm to appellant

re questing money to fund expenses for their expert witness, West ; and (2) a March 20 12 expert witness designation filed for appella nt by appel lee in the U nderlying L itigation de signatin g West as an expert w it ness. West rendered an order denying appellant ’ s motion to recuse

. West then set

a n a rbitration hearing for Nove mber 12, 2019

. In the afternoon on the day prio r to th e hearing, West email e d the parties an affidavit “ [i] n re sponse t o questions regarding conflicts of interest. ” There in West disclosed that he had been paid $5,000.00 by ap pella nt for West ’ s se rvices as an expert witness in the un derlyin g litig ation and that appellan t still owe d $4,830.50 to West for such servic es. Wes t attested that he had also served as an expert witness on a legal malpractice case with appellee in 2005 . West concluded that “ as I review these last fourteen years, I ha d about the same amount of con tact with [ appellant] as I had with [appellee] , and I hav e no predetermined noti o ns about either one of them. ”
At the hearing, West and the parties discussed West ’ s d isclosures. A p pellant argued that he believed the financial d ealings to be an issue that could affec t Wes t ’ s impartiality : “ in this par ticular case, we do have a situation where the fina ncial expenses

— the list of expenses as between [appell ee] and [appe llant] are an issue and [West ’ s] actual expenses ar e part of t hat calcul ation. ” West indi cated that the financial dealings “ sh ould be n o concer n . . . it may be amusin g but it ’ s not a co ncern ” and “ that ’ s a non
- issue because I don ’ t

- - it ’ s not an issue with

me. ” Appellant requested confirmation that West had s wo rn that hi s disclosure6

affid avit contai n ed all of West ’ s involvement with appellee over the prior fourteen years. W hen West confirmed that it was, appellant confronted West with a filing wherein West represented appellee as his attorney in a lawsuit (Undi sc losed La wsuit) . W e st indi cated that his son was counsel for appellee in the Und isclosed Lawsuit , b ut appellant pointed out that the signature line on the filing s includ ed West ’ s name and bar number. W e st admitted that h is name was included on the filin g and that it was his law fi r m but indi cated that his son was the one in charge

o f the case . West then remembered the case , stating , “ We sued Metro plent y of times. M y son is the one who sues them. ” West remembered t hat he would help his son and rem embered t h e general subject matter that was litigated

. West could
not rem ember if appellee ha d paid his firm or i f the firm w as paid by the opposing party as part of the judgment

. West stated th at appellee “ was the instrument that

w e used to . . . su e MTA. We s ue d him [ sic ] more t han once. ” We st also stated that he never ap peared a nd never interviewed anybody in the Undisclosed Lawsuit

. Appellant then confronted West with a transcript indicating that West had appeared as counsel for appellee a t a hearing in the Undisclosed Lawsu it

. In respon se West stated , “ You ’ re try ing

- - you ’ re just being

- - I think you ’ re being silly and that ’ s
-

- that ’ s how much

- - much weight I ’ m putting in all this you ’ re asking me about

. It happ ened, what nine years ago. An d I

- - first off, I never remember rep resenting [appellee],

. . . . I ’ ve heard your complaint and it does not impress

me. ” Appellant then confronted West with his firm ’ s website that promotes its representation of appellee i n th e Undisclosed Lawsuit

. Appe l lant also questio ned whether West ha d diligently searched his r ecords t o un cover any other potential conflicts. West stated it was an inadvertent error o n his part and agre ed that his disclosure affidavit was inaccurate but not inte ntionally so. Appelle e denied that7

West ever represented h im but admitted that West ’ s son ha d. Appellant indicated that he “ did not want to proceed w ith arbitration with inaccurate disclosures

. ” West denied appellant ’ s motion to recuse and continued to hear the merits of th e dispute. Appell a nt refused to parti cipate in the arbitration and left after West made his ruling on recusal. Shortly thereafter West rendered a final award in the arbitration to appellee. A ppellee filed a motion to co n firm the arbitration a w ard in the trial c ourt and set it for an emerge ncy hearing

. Fo ur days later and before the trial court rendered judgment for appellee , a ppellant fi le d a m otion to vacate the ar bitrator ’ s award and

r esponse in opposition to appellee ’ s motion to confirm , a ttaching as exhibi t s a

re porter ’ s record of the Nov ember arbitration he ari ng, W est ’ s disclosure affidavit and attachments, the petition filed in the Undisclosed Lawsuit on beh alf of appellee by West ’ s law firm, a re porter ’ s record f rom a hearin g in the Undisclose d Lawsuit, and a p r i nted version of the w eb page for West ’ s law fir m. A ppellee filed a response to appellant ’ s motion to vacate but did not attach any exhibits or fu rther evidence. On December 13, 2019, t he trial cour t rendered a final judgment and conf ir med the arbitrat i on award in favor of a ppe llee. T h e final jud gme nt st ates that the trial court co nsidered the motion to confirm the arbitration award and “ any timely filed responses to sa me, if any. ”
C. Anal ysis It is undispute d that West ’ s law firm represented appellee in a lawsuit approximate ly nin e years before the arbi tration in this case

. It is undisputed that West did not di sclos e this representat i on in his disclosure affidavit or attachments

. A pri or attorney

- client relationship is one th at mi ght, to an obje ct ive observer,
create a re asona

ble impression of the a rbitrator ’ s part iality. See T ex. Commerce8

Bank v. Universal Tech. I nst. of Tex., Inc. , 985 S.W.2d 678, 681 (Tex. App.

— Houston [1st Dist.] 1 999, pet. d ism ’ d w.o.j .) ( failure to disclose prior attorney

client relationship between neutral arbitrator and party to arbitration might create a reasonable impression of partiality ) ; J.D. Edwards Wor l d Sols. Co. v. Est es, Inc

. , 91 S.W

. 3d 836 , 84 3

– 44 (Te x. App.

— Fort Worth 2002, pet. denied) ( same ) ; see also T UCO, Inc. , 9 60 S.W.2d at 636

. A p pellant was not required to prove that West was actually biased or prejudiced in order to esta blish e vident part i ality

. See Tenaska Energy , Inc. v. Po n derosa Pi n e En ergy, LLC , 437 S.W.3d 518, 527 (Tex. 2014) ; Tex. Comme rce Bank , 985 S.W.2d at 681

. Inst ead, the non disclosure itsel f establishes the evident par tiality. T UCO , Inc. , 9 60 S.W.2d at 636 ; see also Tenaska Energy , Inc , 437 S.W.3d at 527 ( “ [A ]lthough i ntent ma y be relevant to e stabli shing actual bias or partiality, we made clear in T UCO that evid en t p artiality is establishe d from the nondisclosure itself. ” ). B ecause appellant had the right to ve to West at t h e time of

se lection, appellant maintained tha t right based on the new conflict reve aled during the cour se of the proceed ings that might reaso nably have affected West ’ s i mpartiality to an objective observer

. See TUCO, Inc. , 960 S.W.2d a t 636

. West ’ s fai l u re to disclose information that might lea d an object i ve observer to question his partiality establishes his eviden t par tiality. See Tenaska Energ y , Inc. , 437 S.W.3d
at 527

. D. Objecti on in Writing Appell ee argues that appellant failed to object in accord w ith the arbitration provision and , there fore , waived his argument regarding eviden t par tiality

. A ppellee argues that because appell ant faile d to sub mit his com plaints r egarding West ’ s non disclosure in writing prior to the hearing, appe llan t has waiv ed h i s9

complaint. Appe l lant argues that a contract ual waiv er provision cannot be used to circumvent disclosure requir ements.
A party who learns of a conflict prior to the a rbitrator ’ s d ecision must promptly object to avoid waiving the compl aint. TUCO, Inc. , 960 S.W.2d a t 637 n.9. W h ile a party cannot waive an ob jection based on a conflict that they knew nothing about, there could be waiver if th e complainin g party knew all of the facts and did not c omplain prior to the conclusion of the ar bitration. See Ma r in er Fin. Gr p
. , Inc. v. Boss ley , 79 S.W.3d 3 0, 3 6 (T ex. 2002) (Owen, J., concurring). While app ellant clearly objected to West ’ s nondisclosu re at the hearing , he did not file a

wr itten objection. Thus, w e must determine whether such a failure, per the p art ies ’ agreement, constitutes a waiver of th e object ion.
The arbitration provision has two sentences regarding objections : All objections to the arbitrator must be made in writing before the f irst hear ing set by the arbitrator is he ld or the parties a gree that all obj ections to the arbitrator a r e thereb y waived. Any objection to the arbitrator selected or to the arbitrator ’s fee must be ma de before the arbi trator renders a decision or said obj ection is waived. Here, appellant comp lied with the seco n d sentence by objecting at the hearing on the record because the objection was made p rior to the arbitrat or ’ s decision. Applying the first se ntence to the facts herein, a ppellant cannot be held to waive an objection that he was unaware of and that was no t disclos ed prior to th e first hearing

. See B ossley , 79 S.W.3d at 33 (majority o p.)

. T h e disclosures were provided less than a day before the first hearing. A t the be ginning of t he hea ring,

a ppellant raised the objectio n and issues with West ’ s disclo sures . Th ese acti o ns are not consi stent with waiver. 1

1 Under the facts here in waiver would incenti vi ze non disclosure and punish coun se l for proactively reviewi ng and investigating dis closures , and it would be contrary to our directiv e to

“ be scrupu lous in safeguarding the impartiality of arbitrators

. ” TUCO, Inc. , 960 S.W.2d at 633.10

Further, w e have f

ound no case in which a Texas court determined whether

an arbitrating pa rty waive s an arbitrator ’ s conflict i f the p arty fails to investigate the arbit rator ’ s background. See Amoco D.T. C o. , 343 S.W. 3 d at 845 ; Est es, In c
. , 91 S.W

. 3d at 843

– 44 ( r ejecting arg ument that party seeking vaca tur should have discovered nondisclosure soone r because information was in a Martin dale

- Hubble listing ) ; see also Boss ley , 79 S.W.3d 30, 33

– 34 (decl in ing to adopt revie w of whether nondisclosure was discoverable).
E. Repor ter ’ s Record of Hearings Appellee argues that appellant failed to preserve e r r or because appellant did
not provid e a complete record of the arbitration proceeding or provide or obtain a record of the he a ring before the trial court on appellee ’s mot ion to c onfirm and appellant ’s motion to va cate

. Appellee ci tes to numerous cases supporting his argument that appellant has waived his argument because of this failu re, but th ose cases in v o l ved vacating an

a r bitration award based on arbitrator misconduc t or mis take during the arb itration proceedings , wh erein the parties would generally need the entire record to establish their vacatur ground

. See Statewi de Remodeling , Inc. v. Williams , 244 S.W.3d 564, 569 (T e x. App.

— Da llas 2008, no pet.) (seeking vacatu r based on arbitrator mistake) ; GJR Mgmt. Ho ldings, L.P. v. Jack Raus , Ltd. , 126 S.W .3d 257 , 263 (Tex. App.

— San Antonio 2003, pet. denied) ( seeking vacatur based on arbitrator misconduct)

. B u t see Centex /Vesta l v. Friendship West Baptist Church , 314 S.W.3 d 677, 6 84 (Tex. App.

— Dallas 2010, pe t. denied) ( considering issue of whether arbitr a t or exceeded his power or scope of authority without complete record of arbitration hearing ); Grand H omes 9 6, L.P. v. Louderm i lk , 208 S.W.3d 696, 706 (Tex. App.

— Fort Worth 2006, p et. denied) (noting lack of record of the11

arbitration proceeding but conside ring pleading s and agreement in concluding arbitrator did no t excee d his authority ). T hus, appellee ’ s cases are distinguishab l e
. It is unnecessary for purposes of t his ap peal for appellant to bring f orth the entire reporter ’ s record of the arbitrati on pr oceedings because th e only relevant inqui ry is whether West disclosed the former attorney

- client relationshi p with appel lee to appellant , not whether the arbitrat o r was act ually bi ased or pre judiced in fa vor of appellee

. See Tenaska Energy , Inc. , 437 S.W. 3d at 527 ; TUCO, Inc. , 960 S.W.2d a t 636; T

ex. Commerce Bank , 985 S.W.2d at 681

. Appellee next argues that appella nt was required to provide a record of the trial court ’ s hearing on confir mation of the arb itration award

. We disagree. “ A reporter ’ s reco r d is necessary onl y for eviden tiary hearings; ‘ for nonevidentiar y hearin gs, it is super fl uous. ’ ” Crawford v. XTO E nergy, Inc. , 509 S.W.3d 906, 910 (Tex. 2017) (quoting Michiana Easy Livin ’ Country , Inc v. Holten , 168 S.W.3d 777, 782 (Tex. 2005)). Th ere i s no indication in the re cord or in the br iefs that at the heari ng the p arties presented evidence , the trial court received evidence at the hear ing , or that the trial court did anything but listen to arguments f rom counsel

. Appell ee does not contend that the hearing was evi dentiary, and appellant denies that it was

. S ee Tex. R. App. P. 38.1(g) ( may presu me true uncontrove rted
statemen ts of fact) ; see also Holten , 168 S.W.3d at 78 3 ( “ Either party . . . may allege that a hearing was evidentiary, but that a ll egation must be sp ecific. Merely asserting that the trial court ‘ consid ered evidence at the hearing ’ is not enough

– tr ial courts do that when a hearing i s conducted entirely on paper, or based solely on affidavits and exhibits filed beforehand. ” )

. In t he final judgment, t he trial court indicate s that i t consider ed th e motion , response, and argument of counsel, if any

. S ee Crawford , 509 S.W.3d a t 910 (reviewing language of order and what trial
court indicat ed it considered in making it s ruling to determ in e whether the tria l12

court conducted an evidentiary hearing ). Fu rther, e videntiary h earings on confirmation or vacatur of a n arb itration award a re only held when necessary
. See Broemer v. Houston Lawyer Referral Serv

. , 407 S.W.3d 477, 481 n.12 (Tex. App

. — Houston [14th Dist .] 2013, no pet.). B ecause there is no allega tion or indication that the hear in g before the tr ial court was evidentiary , appellant has not waived his issue by not bringing f orth a reporter ’ s record of that hearing. See Crawford , 509 S .W .3d at 910 (holdin g no waiver of issue and that the record was

a dequate despite lack of reporter ’ s record for non

- evidentiary hearing).
F. Ruling on M otion to Vacat e Next appell ee a

r gues that appellant failed to obtain a ruling o n his motion to

va cate and, as a result , has failed to preserve this issue for appeal

. W e have previously held that a trial court implicit ly denie s an application to vacate by

ren dering a f

inal judgment on t h e award

. See C t r
. Rose Partners , Ltd. v. Bai ley , 587 S.W.3d 514, 531 (Tex . App.

— Houston [14th Dist.] 2019, no pe t.) ; Kreit v. Brewer & Pritchard

, P.C. , 530 S.W.3d 231, 236 n.6 (Tex. App.

— Houston [14th Dist.] 2017, pet denied). Here the final judgment re f erences the vacatur motion indirectly : After consider ing [appellee ’ s] Moti on and the Arbitra tor ’ s Final Award on the Meri ts, as we ll as any response and/or argument of counsel pertinent to this dispute, if any, the Court is o f the op ini on and finds th a t [appellee ’ s] Motion should be GR ANTED and f inal jud gment should be entered a ccordingly dis posi ng of all remaining issues an d all parties in this lawsuit.

. . . This judgment disposes of all parties and all issues in this case and is a n appealable decis i on . Al l re lief not g ranted herein is denied. This ge neral langua ge i s suf fici ent to constitute a ruling on appellant ’ s vaca t ur motion. See Ctr. Ro se Partners , 587 S.W.3d at 530 ( language “ all claims not13

expressly granted herein are her eby denied ” s uffic i e nt to constitute a ruling on affirmative def

ense of party)

. G. Fi ndings of Fac t and C o nclusions of Law Appellee ne xt argues that because appell ant failed to request or obtain findin gs of fact or conc lusions of law, we must imply certain fact fin dings. To the
extent disputes about material facts exist in the context o f an eviden t partiality claim , we review the trial court ’ s resolution of those disputes for legal and factual sufficie ncy. Mar riage of Piske , 578 S.W. 3d at 629 . Where, as here, no findings of fact o r conclusions o f law have been issued by t he trial court , we infer al l facts supported by the evidence and necessary to support the judgment. Id

. But if an evident

- parti ali ty determination d id not require the resolution of material conf licts,
t here are no factual findings to which we must defer. Id

. Here, n o material fa cts were in dispute regarding West ’ s non disclos ur e
. Appellee and West both admitted that West ’ s law partne r , Mic hael West , represented appellee in the Undisclosed Lawsuit. We st a dmitted that he had failed to disclose this prior relationship in his disclo sure affidavit. Appellee argues that we shou ld imply certain fin dings, namely that (1) any rela tio nship between appellee an d West was disclosed prior to the agre ement to use West as an arbitrator; (2) th at West di d not have an improper moti ve and could b e fair; and (3) any relations hip between app ellee and West was tri vial. However, none of the se i mplied findings are suppor ted by the evidence. See Retamco Op. , I n c . v. Republ ic Drilling Co. , 278 S.W.3d 333, 337 (Tex. 2009) ( “ When, as here, the trial cour t does not make findings of fact and conclusions of law in support of its ruling, ‘ all facts nece ssary to support the judgm ent and supported by evidence

a re implie d

. ’ ” (quoting BMC Software Belgium, N.V. v. Marchland , 83 S.W.3d 789 , 795 (Tex. 2002) ). Ther e is no evide nce to show that the prior at torney

- client14

rela tionship was disclosed prior to the p arti es ’ agreement to use W est a s the arbitrator , and the evidence d emonstrates t h at it was not disclosed. There is also no evidence to support that the relati onship between West ’ s fi rm and appellee was trivial

. The fact that West ’ s firm use d appellee ’ s ca se as a repr esen tative cli ent on its public website belies the cla im that the r elationship and representation was

“ trivial. ” See Estes , Inc. , 91 S.W.3d at 8 4 4 ( “ The fact that [arbitrator ’ s] law firm included [party to arbitration ] as a representative clie nt in its Ma rtin da le

- Hubbl e listing belies [a rbitrator ’ s] claims t hat his relat ionship with [party to arbitration ] was trivial. ” ).
Last appel lee argues that a “ material fact ” exists as to when appellant knew about the Undisclos ed Lawsuit and that “ i f appellant ha d kno wledge of th ese facts then he either waived the issue o r he was sitting in ambush waitin g to see the results of the arbitration awar d and then p ull out his ‘ do

- o ver ’ card. ” W e find this argument uncom pelling

. Appe llant raised the issue of West ’ s prior relations hip

w ith appellee d uring the first arbitration hearing and prior to the final award

. Further, i t was West ’ s duty to di sclose the prio r r elationship between his firm and appellee

. S ee B ossley , 79 S.W. 3d at 35 ( “ [ T]he concurrence would excuse even an arbitrator ’ s knowing concealment of a relationship evidencing partiality as long as there are facts fr om which the arbitrato r can presume t he complaining party knew it too. But the whole purp ose of an arbit rator ’ s duty to disclose is to avoid this very type of specu lative presumption and let the parties to the arbitration make the call. ” ); see also id. at 36 (Ow en , J. , concurri ng ) ( “ What the l o sing party to an arbitration knew or should have kn own does not an swer the question of whether an arbitra tor ’ s nondisclosure e xh ibits eviden t partiality. ” ) ; Houston Vill. Builders, Inc. v. Fa lbaum , 105 S.W.3d 28, 35 (Tex. App.

— Houston [14th Dist.] 2003, p e t. denied) ( “ [R]egardless of whether the [party] kn ew or should ha ve known of the15

Arbitrator ’ s attorney

- client relationship wi th GHBA, the Arbitrator ’ s failure to dis close this relationship is evidence of his partiality. ” ).
We sustain appe llant ’ s first i s sue.

II. U NCONSCIONABILI TY
A ppellant next argues that the arbitratio n agreement is unconscionable because it allows appellee to “ create a hand

- picked list of arbitrators an d forces [appellant] to cho ose among them. ”
A. Gene ral Legal Princ iples
A part y seek i ng to compel arbitration bears the burd en that an arbitration agreement exists and that the claims presented fall within it s s cope. Henry v. Cash Biz, LP , 551 S.W.3d 111 , 115 (Tex . 201 8) ; Nation wide C o in & Bul lion Reser ve, Inc. v. Tho mas , 625 S.W.3d 498, 503 (Tex. App.

— Houston [14th Dist.] 2 020, pet. denied ). Here, th ere is no dispute that an a rbitration agreement e xists. Th us, the b urden shifts to the party oppo sing arb i tration to prove an affirmative defense to the p r ovision ’ s en fo r cement , such as u nco nscio nability , to av oid arbitration

. See Henry , 625 S.W.3d at 115

. “ If there i s con flicting evidence as to the material fa cts necessary to determine th e issues , the trial court is t o conduct an eviden tiary hearing to r e solve the disp u te. ” Thomas , 625 S. W.3d at 503

.

“ The ultimate issue of whether an arbitration agreement is against public po licy or unconscionable is a quest ion of law for the court. ” R oyston, Ray zor, Vickery, & Wil liams , LLP v. Lopez , 467 S.W.3d 494, 499 (Tex. 2015)

. We defer to the tr ial court ’ s factual determinations if t hey a re supported by the eviden ce and review the legal determinations de novo. Thoma s , 625 S.W.3d at 503

. If the re are

n o factual dispu tes, th e standard of review is de novo. Lop ez , 467 S.W.3d at 499.16

Unconsciona bilit y i s a defense to an arbitration agreement. Lawson v. Archer , 267 S.W.3d 376, 38 2 (Tex. App.

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

. Unconscionabl e c ontracts are un enf orcea ble

. I

n re O lshan Foundation Repair Co. , LL C , 328 S.W.3d 8 83, 892 (Tex. 2010) ( orig. proceeding)

. Texas law re cognizes both su bsta ntive and procedural unconscionability

. I d

. “Substantive unconscionability refers to the fairness of the arbitration provision itself, where as proc edural unconscionability refers to th e circumstances s urro unding adoption of the arbitration provision. ” In re Palm Harbor Homes, Inc., 195 S.W.3d 6 72, 677 (Tex. 2006). “ Generally, a contract i s unc onscionable if, ‘ given the parties ’ gen er al commercial b ackground and the commercial needs of the part icular t rade or case, the clause involv ed is so one

- sided t hat it is unconscionable under the circumstances existing when the parties made the contra ct

. ’ ” Olshan , 328 S.W.3d
at 8 92 (quoting In re FirstMerit B ank , 52 S.W.3d 749 , 757 (Tex. 2001 ) (orig. proceeding) )

. He re, appellant c omplains that the arbitration clause is substantively unconscionable or unfair because appellee controls the composition of the list from which t he potential ar bitrator is dr awn. Se e Bonded Builders Home Warranty Assoc. of Tex. v. Ro ckoff , 509 S.W.3d 523, 535 (Tex. App.

— El Paso 2016, no pet. ); Lawson , 267 S.W.3d at 383

. A p pellant d id not submit any additional evidence to prove his unconscionabili ty defense but inst ead relie d on the language of the arbit r ation provision to support his defen se. See Lopez , 467 S.W.3d at 500 (noting reliance solely on language of the contract to support unco nscion ability defense to arbitration ). Here, the arbitra tion clause provides , in re le vant part, that: Said binding arbitration sh all b e by a reti red or former Texas j udge selected according to this section

. . . . [T]he Fi rm will send the Client a list of three retired or former Texas court judges or justi ces.
. .17

. The client (s) will then selec t a judge from the list and send it back to the Firm. App ellant contends that the ar bitr ation se lection method is un cons cionable because the “ provision allows [appellee] to create a hand

- picked list of arbitrators and forces [appellant] to choose among them. ” There is legal support for this contentio n, b ut no such case has b een decided on this basis in Texas , although two have come close. See Law son , 267 S.W .3d at 384; Ro ckoff

, 509 S.W.3d at 536

. In L awson , the ar bitration provision provi de d that the parties were to agree mutually on three neutral ar bi trator s, that th e arbitrators mu st be “ knowledgeable in , and famili ar with, the home inspection pro fession , ” and th at the arbitrators belong to specified professional organizatio ns
. Lawson , 267 S.W.3d a t 38 3. This court conclu ded that because the arbitra tion provision did not allow one party to

“ create a list of a limited number of specific arbitrators from which the parties selec t a panel ” but instead “ it chose three or ganizati ons, none of which , on its fa ce, is necessarily biased , ” and because the three appointed arbitrat ors were to be

“ neutral” and selected by “ mutual agreement ” of the parties, the provision was not unconscionable. Id . at 384.
In Rockoff

, the court rejected the argument that the arbitra ti on provision therein was unconscionable on its face. Rockoff , 50 9 S.W.3d at 536 . The court

c ame to the conclusion bec ause the provision provided that arbitration be conducted before a “ neutral third party , ” thus preclu ding one sid e from

“ designating a captive arb itration company as a potential sour ce of arbitrators. ” The court fur ther found it compelling that the agreement provided for one party to designate potential arbitration compan ies as opposed to “ specific arbitrato rs. ” Id

.

“ That dis tinction places an im p ort ant step between BBWG and the ac tual18

arbitrator, be cause wh ate ver company Rockoff selects will then present some list of po tential arbitrators from which the parties will des i gnate the actual decision mak er. ” I

d

. (citing Lawson , 267 S.W.3d at 384).
Her e the arbitration provision lacks that “ import ant st ep ” in place in both Lawson and Rockoff

. Under the provision at iss u e , a ppellee picks three names from a group of retired or former Texas judges a nd submits th is short list to appellant

. Appellant th en chooses the arbitrator fro m this short list created by appellee. T here is also no requirement in the provision that the selected arbitrator be “ neutral

. ” That said, appel lant asks this court to declare the port ion of the

a rbitration provis ion that pro vides for selecting the arbitrator un conscionable as a matter of law

. T wo of the cases cited by appellant for this proposition had much more evidence tha n this court in support of unconscionabi lity. See McMullen v

. Meijer, Inc. , 355 F.3d 485 (6 th Cir. 2004) ; Hooters of A m
. v. Phillips , 173 F.3d 933 (4 th Cir. 1999)

. In Hoot ers of A merica v. Phillips , the court analy zed the many ways the arbitration provision favored the employer over its employees

. 173 F.3d a t 938

. For example, e mployees wer e required to file a writ ten statement of claims that would late r l imit the basis on which they could r aise issu es against the employer, while the employer was not required to file or provide anything in w riting to the employee and could a dd new issues whe never it wanted to. Id . at 938

– 39. The employer would also cho o se a list of pote ntial arbitrators, without res triction as to who the employer could pick

. Id

. F rom the employe r ’ s chosen list, t he employee would pick one arbi trator, the employer would pi ck one, and the two chosen arbitr ators would pick a third arbitrato r. Id

. at 938. The em plo yee presented evidence t hat the arbitration provision as a whole was so one

- sided that no

re putable a rbitration firm would participate

. Id . at 939. Because the a rbitration19

p rovision as a whole was “ egregiously unfair ” the court concluded the a greement was unenforceable. Id . at 940.
In McMullen v. Meijer, Inc. , the arbitration provision provided tha t the employer would select a pool of five arbitrators , each of whom must be ( 1) an attorney, (2) unemplo yed by a nd unaffiliated wi th the empl oyer , (3) generally recognized as a neutral and experienced labor and employment arbitrator, and (4 ) listed o n the rosters o f the Federal Mediation a nd Conc iliation Service or th e A merican A rbitration A ssociation , as well as ot her arbitration ro ster s
. 355 F.3 d at 488. The court was concerned of the risk of a “ symbiotic relationship ” de veloping between the arbitrators and the employer but noted tha t the overall plan and selectio n criteri a was more “ even
- handed ” tha n that in the Lopez case. Id

. at 493

– 94 (not ing “ patently one
- sided ” nature of the arbitration provision in Lopez )

. However, t he “ risk of bias inherent ” in th e se lection procedure was de mo nstrated by evidence t hat the employer used the same panel of five to seven arb itrators in each arbitration hea ring in which it participated in the state of M i chigan. Id . at 494. The court con cluded that th is method for selecting arbitrators “ prevents [t he employer ’ s procedure ] from being an effective substitute for a judicial foru m because it inhe rently lacks ne utrality. ” Id

. The federal cases referenced by appellant also involve a parameter not addresse d by the parties in their briefs

. Both Lopez an d McMullen d eal t with employe e statutory rights under Title VII . While it is a cknowledged that employees can b e required to arbitrate such statutory claims, “ [t] he S u preme Court ha s made clear t hat statutory rights, suc h as those created by Title VII, may be subject to mandatory a r bi tration only if the arbitral forum p ermits the eff ective vi ndicatio n of those righ ts. ” Morrison v. Circuit City St ores, Inc. , 317 F.3d 646 , 658 (6th Ci r. 2003) (emphasis add ed)

. “ Under Gilmer , the arbitral forum must20

provide litig ants with an effective substi tute for the judicial forum

. . . . ” Id . at 6 59. This is due to the co ncern s regar ding the “ potential inequ ities and inadequacies of arbitration in individual employment cases, as well as

. . . the competence of arbitrators and the arbi tral forum to enfor c e effectively the myriad of public laws prot ecting workers and regu la ting the work place. ” Cole v. Burns Int ’ l Sec. Servs. , 105 F.3d 1465, 14 67 (D.C. Cir. 1997) ; see also In re Poly

- Am ., L.P. , 262 S.W.3d 337, 352 (Tex. 2008) ( orig. proceeding) (holding employer cannot cont ractually ab s olve itself fr om statutory rem edies designed to deter Workers ’ Com pen sation Act ’ s anti

- re taliation provisions ; “ We re we to endorse [ employer ’ s] position and permit enforcement of these remedy limitations, a subsc ribing employer coul d avoid t he Act ’ s penalties by conditi oning employ ment upon waiver of the ve ry provisions d esigned to protect employees who have been the su bject of wrongful retaliation

. ” ) ; Walker v. Ryan ’ s Family St ea k Houses, Inc. , 289 F. S upp.2d 916 , 923 ( M.D. Tenn. 2003) ( noting not all statutory rights su i table for arbit ration and i n determining whether “ specific arbit ral for a have provided from proper vi ndication of statutory claims, the Sixth Circuit has cons id ered such factors as the neut rality of the forum, evidence of bias, parties ’ oppo rtunities for d iscovery, co st

- splitting provisions, limitations on remedies , a nd the arbitrat or selection proce ss. ” ) aff ’ d , 400 F.3d 370 (6 th Cir. 2005) ; s ee also Floss v. Ryan ’ s Steakhouses, I nc. , 211 F.3d 306, 314 (6 th Cir. 2000) ( process of picking arbitrators app ear ed facially reasonable but express ing “ serious reservation s as to whether the arbitral forum pr ovi ded under th e curre nt version of the EDSI Rules and P r ocedur es is suitable for the re solution of s tatutory claims

. ” (emph asis added) )

. Here, the dispute be t ween the parties is contract ual in nature and involv es appel lee ’ s claim for attorney fees an d e xpenses. Th ere are no statutory rights being litigated and no evid ence regarding the circ umstances of the par ties at the21

time t he agreement was executed

. See I n re FirstMerit Bank, N

.A. , 52 S.W.3d at 757 ( “ [T]h e basic test for unconscionab ility is w hether , given t he parties ’ general commercial background and the commercial nee ds of the particular trade or case, the clause involved is so one

- sided that it i s unco nscionab le under the ci rcum stan ces e xisting when the p arties made the contract. ” (emphasis added) ) ;

s ee a lso Cole , 105 F.3d at 14 7 6 ( “ The f undamen tal distinction between contractual rights , which are created, defined, and subject to modification by t he sam e private parties parti cipating in arbitration, and statutory rights, which are created, d efine d, and sub ject to modification o nly by Congre ss and the courts, suggests the need for a public, rather than private mechanism of enforcement of statut ory r ights. ”). Additionally , appel lant has not su bmitted any evidence of appellee ’ s prior arb itration s and the pool of retired o r former Texas judges he has selected to serve as arbitrators in those matters. There is no e vidence of the “ s ymbiotic relationship ” feare d in Meije r , though we are cognizant of the p otential for one to develop

. As f

urther evid enced herein , a ppell ant has recourse in invalidatin g an arbitration award on the basis of evident partiality, as well as arbitrator misconduct or mistake. We a re not prepared to declare th is arbitration provision unconscionable as a matter of law

. We ove rrule appellant ’ s second issue.
III. C ONCLUSION The fact that a r easonable person could conc lude that the prior a ttorney

client relationship between West ’ s law f irm an d appell ee might affect West ’ s imp artiali ty triggers the duty of disclosure. West ’ s failu re to disclose the rela tionship thus constitutes evident partiality under section 171. 0 8 8. See Tex. Civ

. Prac. & Rem. Code § 171.0 8 8; see also TUCO, Inc. , 960 S.W.2 d at 639

. F or the foregoing rea sons, we remand this cause to the trial court with instruction s to vacate the a rbitration award and , barring further evidence of unconscionability, to22

refe r the dispute for further arbitration under the agreement of the part ie s. See T UCO, Inc. , 960 S.W .2d at 639

– 40.

/s/ Ken Wise

Jus tice

Panel consists of Justices Wise , Bourliot , and Zimmerer

.